Bruggy

I dissent. In my opinion, the court erred in giving the following instruction: “ If the murder was deliberate and premeditated, it was murder of the first degree. Otherwise it was murder of the second degree. And in determining the degree, any evidence tending to show the mental status of the defendant is a proper subject for the consideration of the jury. The fact that defendant was drunk does not render the act less criminal, and in that sense it is not available as an excuse. But there is nothing in this case to exclude it as evidence upon the question as to whether the act was deliberate and premeditated. It was murder, whether premeditated or not. And as between the two degrees of the offense, there is no presumption or intendment of law in favor of the first. Presumptively every killing is murder. But so far as the degree is concerned, no presumption arises from the mere fact of the killing, considered separately and apart from the circumstances under which the killing occurred. The question is one of fact to be determined by the jury from the evidence in the case, and is not a matter of legal conclusion.”

This instruction was given in connection with others relating to the…

The defendant was convicted of murder of the first degree, and is under sentence of death. He appeals from the judgment and order denying his motion for a new trial, and insists that the evidence is not sufficient to support the verdict. The jury had before them many eye-witnesses to the homicide, and also *478 evidence showing all the surrounding circumstances. There was some evidence tending to prove the guilt of the defendant as charged, and for that reason, under well-settled principles, we would not be justified in setting aside the verdict.

It is insisted that many of the instructions containing the law of the case as given by the court to the jury were erroneous and prejudicial to the rights of the defendant. The instructions necessary to consider in the discussion of this question are as follows: —

Appellant’s counsel insist that instruction No. 3 is erroneous, “ because, in effect, it tells the jury that although the defendant acted under the heat of passion, it could not be manslaughter unless the provocation was of such a character as would naturally excite and arouse the passions of an average man. For the question is, not whether some other person would probably…

In my opinion, the seventh instruction was clearly erroneous. If the defendant declined any further struggle immediately prior to the firing of the shot, although he was the assailant, he was justified in shooting the deceased, if he believed upon reasonable ground that he was in danger of receiving great bodily injury. (Pen. Code, sec. 197, subd. 3.) The in- • struction ignores the fact that the defendant may have declined any further struggle, and tells the jury, in effect, that the defendant was not justified in shooting the deceased if he was the assailant, unless he believed that he was in danger of losing his own life.

I think that the learned judge of the court below erred also in givingthe fourth instruction and the instruction upon the question of drunkenness.

This court granted a rehearing in this case because, in the opinion of the majority, the petition for a rehearing presented a new point as to which there were grave doubts. It is practically admitted in the opinion of the majority affirming the judgment of the court below that *489 the case upon the evidence is a close one. If, therefore, the instructions are contradictory or confusing, the court should be willing…