State v. Braley

ROSSMAN, J.,

dissenting.

I agree with the majority that the trial judge committed error when he instructed the jury as to the effect which it could give to the defendant’s testimony that he was under the influence of intoxicating liquor at the time of the stabbing. The majority hold that the instruction was erroneous, and, based upon that holding, reduce the defendant’s conviction from first degree murder to second degree murder. They indicate that if the jury had been properly instructed upon the effect of the alcoholic beverages and benzedrine tablets, which he swore he consumed prior to the stabbing, it is possible that the jury would have reasoned that he was incapable of the “deliberate and premeditated malice” which ORS 163.010 demands that an accused must have before a verdict of first degree murder can be returned against him.

But if the defendant was so inebriated at the time of the stabbing that he was incapable of “deliberate and premeditated malice” as that element of first degree murder is set forth in ORS 163.010, I can not bring myself to believe that he was nevertheless capable of “purposely and maliciously” taking the life of his paramour. He swore that he did not intend to kill the woman. The three words, last quoted, form a part of ORS 163.020 which specifies the component elements of second degree murder. For any one to do an act purposely, whether the act is criminal or commendable, means that he did it wittingly, and knowingly. If an act is done brutally the law may ascribe to the accused malice, and thus obviate the necessity *22 of supplying other evidence of that element of the crime. But the law will not ascribe to a defendant in a criminal case the element of purpose. The latter must be established by evidence.

No one can do an act purposely unless he has such possession of his mental faculties that he is capable of at least a semblance of thinking. If this defendant, at the fatal moment when he plunged a knife into his mistress, was so inebriated that this court must hold that he was incapable of “deliberate and premeditated malice,” I do not believe that it can say that he was nevertheless capable of “purposely” taking the woman’s life.

Our statute concerning intoxication (ORS 136.400) in cases of this Mnd reads:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition; but whenever the actual existence of any particular motive, purpose or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.”

It will be observed that the statute just quoted authorizes the jury to “take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose * * * with which he committed the act.” The presence of the word “purpose” in that act is worthy of attention. We noticed that ORS 163.020 requires the state to show that any one who is accused of second degree murder took Ms victim’s life “purposely.” Accordingly, tMs court cannot adjudge the defendant guilty of second degree murder unless it can say that he performed an act *23 purposely, that is, wittingly or intentionally, whereby the woman was brought to her death; but, if he was so intoxicated that he was incapable of premeditation or deliberation, it surely can not say that he was capable of pursuing a purpose. The decisions which the majority cite do not support the majority’s position. Those cases were not confronted with a statute governing second degree murder which contained the element of “purposely,” and which, therefore, required the court to make a finding upon that subject if it proposed to hold the defendant guilty of second degree murder.

The majority declare that their action is warranted by Article VII, Sec. 3, Constitution of Oregon. They believe that that section of our Constitution enables them (1) to weigh the evidence upon intoxication; (2) to find that the defendant was sufficiently inebriated so that he was incapable of deliberate and premeditated malice and (3) to find that he retained sufficient of his mental powers that he was capable of purposely taking his victim’s life.

It is highly important that we bear in mind the fact that the defendant has never had a jury trial upon “intoxication,” “purposely” and “deliberate and premeditated malice.” Due to the grave error that the trial judge committed in charging the jury that it deny to the defendant any effect whatever from his evidence which showed intoxication, he has not had trial by jury upon those phases of his case. Article VII, Sec. 3 does not justify the majority’s course. That part of our Constitution expressly says, “the right of trial by jury shall be preserved.”

State v. Ragan et al., 123 Or 521 , 262 P 954 , does not authorize the majority to deny the defendant trial by jury. In that ease the defendant was found guilty *24 of the crime of assault and robery, being armed with a dangerous weapon. The trial was free of error with the exception of the fact that the instructions misdefined the nature of a dangerous weapon. This court remanded the case to the circuit court with instructions to enter against the defendant a judgment of guilty of assault and robbery and sentence him upon that lesser crime. Thus, that case did not involve the re-examination of any evidence.

I am satisfied that if this court, upon examining the evidence, can not say that the defendant was capable of deliberate and premeditated malice, it can not say that he took the woman’s life purposely. The evidence was clearly capable of proving that the defendant was motivated by deliberate and premeditated malice. For example, it showed that (1) the defendant spoke to his paramour loudly and in argumentative terms which possibly denoted hostility; (2) he demanded that the woman return upstairs with him; (3) he roughly snatched a telephone from her hands; (4) he struck the woman a severe blow which caused bleeding to take place; (5) he went upstairs and obtained a large knife; (6) after he had been induced to surrender the knife he went upstairs again and obtained a second knife and (7) after he had been persuaded to surrender the second knife he found the first knife in the place where Ms landlady had attempted to conceal it. The evidence just summarized is certainly strong proof of deliberate and premeditated malice. The defendant’s brief says:

“He does not deny that he participated in the nefarious events of the evening of May 19, 1958, nor does he deny that he stabbed Judith Violet Knutson, but the defendant does state that he loved the deceased and did not intend to kill her. The purpose of the knife was only to frighten her.”

*25 Accordingly, a purpose to kill was as much an issue in the case as “deliberate and premeditated malice.” Since the stabbing was not contested and since “the nefarious events of the evening of May 19, 1958,” were conceded, the majority, by themselves resolving the issue of purpose, have denied to the defendant trial by jury upon one of the very few issues of the case.

We should do with this case, according to my belief, the same as we do with other criminal appeals in which prejudicial error is found. That is, we should remand the case to the circuit court for retrial.

I dissent.

MILLARD, J., concurs in this dissent.