Later courts went against this
Overruled by People v. Valentine, 28 Cal. 2d 121 (1946)
Bruggy, have been overruled by People v. Valentine, supra, 28 Cal.2d 121.
The opinion
De Haven, J., dissenting.
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 purpose for which the evidence of defendant’s drunkenness was received, and doubtless the court in its charge intended to state the familiar rule which is found in section 22 of the Penal Code, to the effect that the jury might consider such evidence for the purpose of determining whether the defendant was capable, at the time of the homicide, of acting with that peculiar deliberation which is necessary in order to make an unlawful killing murder of the first degree; that is, whether his mental condition was such that *488 he could and did form in his mind a design deliberately and premeditatedly to take the life of deceased; but it must be conceded, I think, that the language chosen was not sufficiently guarded. The use of the word “ murder,” throughout the instruction, and particularly in the sentence, “It was murder, whether premeditated or not,” must have been understood by the jury as intended to apply to the=particular case before them, and indirectly as an expression of what the judge believed the evidence to establish.
Instructions should not, directly or indirectly, assume or suggest that a defendant is guilty of any degree of crime. (People v. Lanagan, 81 Cal. 144 .) And when a defendant claims that the act of killing was done in self-defense, the act should not be spoken of by the judge as a murder,
Beatty, C. J., concurred.