The opinion
HOUSER, J., Dissenting.
I dissent. From a careful reading of the reporter’s transcript of the proceedings herein, I am convinced that the record discloses no prejudicial error. But from the conceded fact that, at the moment when the homicide was committed, defendant was under the influence of intoxicating liquor, it is doubtful that he was capable of forming an express or specific intent to commit a crime, or of appreciating the difference “between right and wrong”. To some extent, the circumstances indicate a “sudden brainstorm”. One of the alienists testified as follows:
“I made a physical examination with reference to his reflexes to see if they showed any present signs of syphilis; there were no neurotic signs of syphilis,—and, I continued the examination,—the medical condition showed no dementia of the type which you would expect to find following after *546 a long duration, and I didn’t find any sign of that. I think the story he gave me was very revealing, it showed a keen mind, and I believe he was telling the truth ■ I think that he was very much confused at the time, that there was certain events of the morning which he had forgotten entirely,—I don’t think he remembered the facts exactly; I think, as he told me his story, he acted in intense anger, under a reaction, an emotional reaction of anger, so certain events which preceded the act, I think the anger perhaps played as much part in his forgetting as the alcohol; but he related as to the amount of alcohol he had taken. I think, considering his age and with hardening of the arteries probably including syphilis in his system, caused the arterial hardening, and that he was more susceptible to the alcohol than he would otherwise have been, and that he was definitely confused and reacted emotionally and almost instinctively in entering into this fight. I think it was, as far as this act I am considering is concerned, it was an unpremeditated fight. ... he was very emotional and alcohol releases these inhibitions, and as soon as the inhibitions were released he boiled over, as it were. ... A. I am rather inclined to think he thought he was doing right. Q. But could he distinguish between what was right and what was wrong? A. I think he had power of analysis, but his emotions overcame his inhibitions. ’ ’ And in that connection, the other alienist testified that:
“ ... I don’t think the man would ever do such a deed unless he had been drinking; I think there was no venom, if he had any it wasn’t very great,—probably at that time he didn’t control himself as he did at other times,—he said if he hadn’t got that crack in the jaw this wouldn’t have happened. So far as I could see, I didn’t feel he would kill anybody in cold blood, I think he just was worked up to the pitch he got too excited, that he just went beyond himself, but I think he is a sane man. ’ ’
There was no direct evidence to the contrary. Furthermore, it appears that on the trial of the issue of “not guilty by reason of insanity”, after the jury had been in conference for approximately one-half hour, it returned into court, whereupon the following colloquy occurred:
“The Court: I understand, Mr. Foreman, there is something you wish to take up with the court? Juror Godfrey Simon: Yes, your Honor, we can’t seem to come to any agree *547 ment whatever. If we had had the evidence that was presented today, yesterday, the jurors feel like there would have been an entirely different verdict, and they ask for further instructions what we should do. The Court: My only answer to you, Mr. Foreman, is, the question which is submitted to you and which you are to decide is the fact as to whether the defendant was sane or insane at the time of the commission of the act alleged in the information. Juror Simon: I understand, but I haven’t foiuid the jurors willing to vote upon it.”
It thus becomes clear that, had the issue of “not guilty” been tried contemporaneously with the issue of “not guilty by reason of insanity” (as formerly was permitted by statute), a verdict would have been returned that would have been “entirely different” from a verdict of “guilty of first degree murder”. In other words, the verdict could have been no greater than “first degree murder”, with recommendation of life imprisonment. But the verdict might have been “second degree murder”, or even “manslaughter”.
Although with reference to the provisions of subdivision 6 of section 1181 of the Penal Code, which purport to empower this court to modify a judgment of conviction by decreasing the degree of the crime, I deny that the legislature possesses any such power, but, to the contrary, insist that all jurisdiction and powers of this court must be conferred thereon by constitutional provision (People v. French, 12 Cal. (2d) 720, dissenting opinion, at p. 780 [ 87 Pac. (2d) 1014 ]), nevertheless, my conclusion herein, based upon the inherent and implied power of this court, is that the offense should be reduced to that of second degree murder. (People v. Kelley, 208 Cal. 387 [ 281 Pac. 609 ] ; People v. Howard, 211 Cal. 322 [ 295 Pac. 333 , 71 A. L. R. 1385].)