Brennan v. People

• Decision Date: 07 May 1906
• Citation: 86 P. 79,37 Colo. 256
• Parties: BRENNAN v. PEOPLE.
• Court: Colorado Supreme Court

86 P. 79

37 Colo. 256

BRENNAN v. PEOPLE.

Supreme Court of Colorado

May 7, 1906

Error to District Court, Lake County; Frank W. Owers, Judge.

Patrick Brennan was convicted of murder in the first degree, and he brings error. Reversed.

John A. Ewing and George F. Burtch, for plaintiff in error.

N. C Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

GODDARD J.

The plaintiff in error, defendant below, was convicted of the crime of murder in the first degree. The jury fixed the penalty to be suffered by him at death. A motion for a new trial was overruled, and he was sentenced to be hanged. He brings the case here for review, and assigns numerous errors upon which he predicates the right to a reversal.

We have found it necessary to consider but two of the questions presented, the pertinency of which will be apparent from a brief statement of the facts of the case. It appears that Mrs. Lowney, the deceased, and Brennan, the defendant, had been friends for about four years. They became acquainted in Butte, Mont. They were engaged to be married. He left Butte in May, 1904, and came to Leadville. She followed in July. He furnished her money to buy a boarding house in Stumptown, a place about five miles from Leadville. He lived with her. They were to be married in the fall. Everything went smoothly for a month or more, when she informed him that she had 'another fellow,' a Swede, who visited her. He Brennan, told her if she cared more for this man than she did for him, if she would give him some of the money he had given her, he would leave. She told him to 'go to the devil.' Nothing further occurred until December 25, 1904. On Christmas morning he went downtown and bought some presents for Mrs. Lowney and her children. He gives the following version of what occurred after his return 'There was two bottles on the table. I poured out some whisky and drank. I went out and split her some kindling wood, came back in, and was around the house. She told me Mr. Erickson was back from town, so I said I would go out to Kelly's [a saloon] for awhile. * * * We had some drink. I don't know how much I had. * * * Then I came back in the evening, I think it was about half past 4 or 5-I don't know sure about what time I came back. * * * When I walked in, I went into her room, off the dining room. There was a half gallon demijohn of whisky. I took some of it; at that I laid down on the bed to sleep. I don't remember any more that night until I was at the hospital. * * * Have no recollection of the shooting. * * * The first I realized what I was said to have done Father Gibbon told me at the hospital.' There is other evidence tending to show that at the time and soon after the shooting Brennan was in an intoxicated condition. On the evening of December 25th Mrs. Lowney, with others, was at the house of Mr. Nelson, attending a party. At about 7 or 8 o'clock the defendant entered the kitchen where Mrs. Lowney was, and fired two shots from a revolver, both of which took effect upon her. After the shooting Brennan went into the street and shot himself in the forehead. Dr. Kahn, who was first called as a witness in behalf of the people, was recalled to testify as to the condition of Brennan when he saw him shortly after the shooting. During his examination the following occurred: 'Q. What, if anything, unusual or abnormal did you observe in his manner, appearance, condition? A. Well, I found the wound. At first, in the effort to get him in a chair, so that I might examine the wound, he was unable to stand, or even to sit in the chair, apparently an inco-ordination of the muscles; and he was held by either one or two--I don't recall, exactly. Q. Did you observe any evidence of intoxication at that time, Dr. Kahn? A. Well, that is what I attributed the incoordination to. * * * The Court: Is this simply to prove drunkenness? Mr. Burtch: Simply to show his condition. The Court: Are you going to set up drunkenness? Mr. Burtch: Simply the condition. The Court: I will not allow you to go on with this examination with the view that you can set up intoxication as a defense.' The court, over the objection of counsel for defendant, gave the following instruction: 'No. 18. The court instructs the jury that drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness be occasioned by the fraud, contrivance, or force of some other person or persons, for the purpose of causing the perpetration of an offense, in which case the person or persons so causing said drunkenness for such malignant purpose shall be considered principal or principals, and suffer the same punishment as would have been inflicted on the person or persons committing the offense, if he, she, or they had been possessed of sound reason and discretion.' And refused the following, asked by the defendant: 'Instruction No. 2. The court instructs the jury that, while it is a general rule of law that voluntary drunkenness is no excuse for a crime perpetrated under its influence, still in cases of this kind intoxication, if proved, may sometimes be considered by the jury, for the purpose of determining whether the accused at the time of the alleged offense was capable of forming a willful, deliberate, and premeditated design to take life; and in this case, although the jury may believe from the evidence beyond a reasonable doubt that the defendant killed the deceased, still, if you further believe from the evidence that before and at the time the defendant fired the shot he was so under the influence of intoxicating drink as to be incapable of forming in his mind a design deliberately and premeditatedly to do the act, then such killing would only be murder in the second degree.'

1. Instruction No. 18 is a copy of section 1164 of our Criminal Code (Mills' Ann. St.), which is simply declaratory of the common law, where it is uniformly held that drunkenness is not an excuse for crime. Yet all the cases hold that when a particular intent forms the gist of the offense, as contradistinguished from the intent necessarily entering into every crime, and is made to depend on the state and condition of the mind of the accused at the time, and with reference to the acts done and committed drunkenness as a fact affecting the control of the mind is proper for the consideration of the jury in determining whether the accused was capable of entertaining the positive and particular intent requisite to make out the offense. Crosby v. People, 137 Ill. 325, 27 N.E. 49. Crosby was indicted for an assault with intent to commit murder. An instruction in the language of their statute, which is identical with ours, was under consideration. Mr. Justice Shope, speaking for the court, says: 'Drunkenness was, therefore, at common...