I dissent. The statement of facts in the prevailing opinion is not as full and complete as is necessary to a proper understanding of the case; hence I insert one of my own.
Defendant is a native of Finland. He came to the United States in 1914 and to Utah in 1927. At the time of the trial he was 42 years of age. Minnie Mantyla was a *Page 368 widow with several children, residing on a small farm near Salt Lake City. At the time of her death she was about 45 years of age. She also was a Finn and spoke the language. The defendant became acquainted with her shortly after his arrival in Utah, and in August, 1928, commenced to cohabit with her in the relation of husband and wife, though not married, at her farm. About April 1, 1929, Minnie Mantyla rented an apartment or rooming house called the Evans Apartments, on State street in Salt Lake City, and removed there to conduct a rooming house business. The defendant accompanied her and continued his relations with her. They occupied a suite of two rooms, called apartment No. 3, situated on the second floor of the building. The defendant was addicted to gambling and the use of intoxicating liquors, and he had previously conducted a pool hall in Salt Lake City on his own account. There was evidence of some little disagreement between the defendant and Minnie Mantyla over his drinking habits and the collection by him of rent from one of her roomers. This, however, was not serious. Apparently they were on good terms with each other. The homicide charged occurred on May 18, 1929. On that day it appeared that the defendant was drinking liquor to some extent. Early in the afternoon he accompanied Minnie Mantyla to a store to make some purchases. Later he was seen playing cards in a pool hall. A witness saw him buy $20 worth of chips in a card game and lose them. It was proved that in the evening he went to one of the roomers of the rooming house and collected $5 rent. Prior to that time Minnie Mantyla had always collected the rent. It was also shown that the defendant left the apartments in the evening to go to a barber shop, and again went out to buy cigarettes. Minnie Mantyla was seen on Main street at about 8:30 o'clock in the evening, by two of her roomers. From them she borrowed their key to use in opening the door of her own apartment, stating that the defendant had her key. At about 9 o'clock a married son of Mrs. Mantyla, with his wife and daughter, called at apartment No. 3 and spent a short time there with the *Page 369 defendant and Mrs. Mantyla. After they left and about 9:45 o'clock, the two roomers, Mr. and Mrs. Everett, who occupied rooms on the third floor, and who had lent their door key to Mrs. Mantyla, called at apartment No. 3 for their key. Minnie Mantyla and the defendant were there present and on apparently good terms with each other. They invited Mr. and Mrs. Everett to stay for lunch and coffee, but the invitation was declined. The Everetts thereupon went to their rooms on the third floor and a few minutes later heard several pistol shots in quick succession and screams of a woman. They hurried down to apartment No. 3 and knocked repeatedly on the door. The defendant, after a short time, unlocked and opened the door, from the inside, and said, "Wait a minute, wait a minute." He was bleeding from the mouth and had blood on his clothes. He shut the door. Mr. and Mrs. Everett returned to their own apartment and called the police. In a short time police officers arrived and entered apartment No. 3, and found Minnie Mantyla lying dead on the floor with numerous bullet wounds in her arms and body, and with contusions and lacerations over the left side of the body about the hips and buttocks. The defendant was lying on the body of the dead woman with his face against hers. He was bleeding profusely from his head and face and was apparently unconscious. He had apparently been shot in the mouth and the bullet had come out through or lodged behind the left eye. A Smith Wesson 38-caliber revolver which the defendant had purchased a year before, with six empty cartridges in it, was lying on the floor. A pint bottle, two-thirds full of whisky, was found on a chair or settee in a corner of the room. The dead body of the woman was taken to the city morgue, and the defendant was taken to the Emergency Hospital. The doctor who examined the defendant said that he had a laceration which tore out the angle of his mouth on one side, allowing his lower lip to drop; that he was bleeding profusely, and mumbling something unintelligible to the doctor; that some one asked him something about his wife; that the defendant mumbled something *Page 370 about his wife, but that the witness was not able to make out what the defendant was trying to say.
The chief of detectives testified that he was at the emergency hospital when the defendant was being examined by the doctor; that the defendant was bleeding profusely from the mouth, and that the witness wiped the blood from his mouth repeatedly; that the defendant said: "Where is my wife? I want my wife." That the witness said, "She is dead," and then asked, "Who shot Mrs. Mantyla, and you?" and the defendant replied, "I did." Another police officer named Ramsey testified that while the defendant was lying on the operating table at the emergency hospital and before the arrival of the doctor, he heard Officer Applegren ask the defendant if he shot the lady, and that the defendant replied, "Yes, I shot her." Another witness stated that he was present at the emergency hospital when the doctor was examining and treating the defendant. That the witness asked the doctor what caliber gun did the injury, and the defendant voluntarily answered by saying "38 caliber." A nurse called by the defendant testified that she was present at the emergency hospital assisting the doctor in caring for the defendant. That she heard the defendant speaking. That the only thing she heard him say that she could understand was, "Yah, mine wife, mine wife." That he jabbered something else which she could not understand. That the detectives asked him numerous questions, and he answered, "Yah," to everything.
On the night of and after the homicide, the chief of detectives found an account book lying on the kitchen cabinet in the apartment where the tragedy occurred, on the front of the last leaf of which was certain writing in the Finnish language. Several witnesses testified that the handwriting was that of the defendant. Translated into English, the writing was as follows:
"I have decided that I will do a good deed end Minnie Mantyla and myself because she is such a great harlatan woman I am not crazy but will say farewell to all of you states W. Stenbaka I am doing *Page 371 this deed so you will see that I can suffer all I have suffered very much take notice of W. Stenbak."
The defendant was a witness at the trial in his own behalf. He testified that he was 42 years old; that he came to the United States from Finland in 1914; and worked in Minnesota, South Dakota, Montana, Washington, and Idaho, in logging camps and mines and on farms from time to time, until December, 1927, when he came to Salt Lake City, where he purchased a half interest in a restaurant and pool hall. While operating the same he met Minnie Mantyla and commenced associating with her. He saw her nearly every week, and she sometimes spent the night with him in his room. About August 1, 1928, he sold his interest in the pool hall, and went to live with Minnie Mantyla at her farm near Salt Lake City. At that time he loaned or gave her for safe-keeping something over $500. In April, 1929, Minnie Mantyla purchased the Evans Apartments at Salt Lake City, to which place they both removed and took up their residence. The defendant in his examination in chief gave a minute and detailed account of the conduct and actions of both himself and Minnie Mantyla during the day when the homicide occurred, and up to the time when the shooting commenced. His version of the tragedy was that when he and the deceased were alone in their apartment, she told him of her intention to go on an excursion to Idaho with a man named Kelly. That he (the defendant) told her she could not go until she had paid him the money she owed him. That after some further words between them, she took the pistol from a bureau drawer and pointing it at him said, "Here is the way I am going to pay you." That he said, "You are crazy," and grabbed for the gun, but got a shot, and that thereafter everything was black, and he could not remember anything until he was down at the county hospital a day or two later. He said he did not remember writing the matter in the account book in the Finnish language above referred to, and knew nothing about it. In his examination in chief he said he *Page 372 had been drinking during the day, but did not say that he was intoxicated and did not claim that he was incapacitated on that account. The only reference in the evidence to the subject of intoxication occurred during his cross-examination, and is embraced in the following questions and answers, viz.:
"Q. Were you drunk so that you did not know what you were doing when Mrs. Mantyla was killed? A. We had been drinking.
"Q. I am not asking that. Answer the question yes or no. A. Yes, I was drunk.
"Q. Did you know what you were doing? A. I did not do anything.
"Q. Well, then, you were not so drunk: you know that you did not do anything? A. I remember I was not doing anything.
"Q. I say you remember going over and taking hold of Mrs. Mantyla's hand, didn't you, when she had the gun? A. Yes.
"Q. Well, then, you do remember something, don't you? A. Yes.
"Q. Then you were not so drunk that you did not remember anything, were you? A. No, I was not so drunk."
The defendant further stated that he could remember lots of things that occurred, but could not account for every minute. He gave a particular account of his actions during the day and evening and up to the time when he said the first shot was fired, after which time he said everything was black.
It is not claimed that the evidence is insufficient to support the verdict. The assignments of error are:
(1) That "the court erred in denying appellant's requests for instructions Nos. 3 to 15 inclusive." And (2) that "the court erred in denying appellant's motion for a new trial."
Under his first assignment, counsel for appellant complains of the court's refusal to give but two of his requested instructions, and these relate to the subject of intoxication and are as follows:
Request No. 4. "It is a general principle of law that intoxication is no excuse for crime, but this general principle has this important qualification or modification, so far as it relates to murder in the first degree. A particular or specific intent is absolutely essential to the commission of this crime, and if the mind of the person doing *Page 373 the killing is unable, because of intoxication, at the time of the killing to form this particular or specific intent, there can be no murder in the first degree, unless the person doing the killing became voluntarily intoxicated for the purpose of killing while intoxicated."
Request No. 5. "You are instructed that on the question of the intoxication of the defendant at the time of the alleged killing, if you find from the evidence he was intoxicated, you must be satisfied beyond a reasonable doubt that such intoxication did not incapacitate him from forming a deliberate purpose to kill the deceased; and if you have any reasonable doubt on this question, you must give the prisoner the benefit of such doubt, and find him not guilty of murder in the first degree."
Concerning intoxication, the court charged the jury substantially in the language of Comp. Laws Utah 1917, § 7910, as follows:
"No act committed by a person while intoxicated is less criminal by reason of his having been in such intoxicated condition, but if you find that the defendant was intoxicated at the time of the alleged act, then you may take that fact into consideration in determining as to the intent with which the act was committed. If defendant was capable of conceiving a design, he is presumed, in absence of proof to the contrary, to have intended the natural consequences of his act."
No exception was taken to the giving of this instruction. The contention is that the law respecting intoxication and its bearing upon premeditation, deliberation, and intent was not fully or completely stated to the jury or the instruction given, and that error was committed in that regard by the refusal to give the instructions requested by the defendant. It is not claimed that the instruction given contained anything erroneous, but that it omitted to charge that intoxication was a matter to be considered in determining whether the defendant had the capacity to and did premeditate and deliberate upon the homicide. In this regard it is insisted that the decisions of this court inState v. Dewey, 41 Utah 538, 127 P. 275, and State v.Anselmo, 46 Utah 137, 148 P. 1071, lay down standards of instructions upon the subject which were not observed *Page 374 in the present case. It is not necessary here to review the cases cited or to inquire into the question of what particular instructions concerning intoxication are required in a proper case, for the reason that in this case the matter of intoxication was so unimportant and the evidence of it so slight, that no reversible error would have resulted had no reference been made to the subject at all. As heretofore stated, the defendant never claimed at any time that he was mentally incapacitated by intoxication, and no other witness testified to any fact or opinion from which it could be inferred that the defendant was intoxicated on the day of the homicide. On the contrary, the testimony of the defendant himself is clearly to the effect that up to the time of the actual shooting he was in the possession of his normal mental faculties. This is evident by his particular and detailed account of the movements and actions and conversation of both himself and the deceased during the whole of the day and up to the moment when the first shot was fired, at which time he says that everything turned black. According to his own testimony, he knew and remembered that in the forenoon he cleaned the hallway and heated the water for the bathrooms. That he and the "Mrs." made some punch and did some drinking. That along in the afternoon they went to several stores where Mrs. Mantyla was making some purchases and returned to the apartment about 4 o'clock. That about 6 o'clock he went to a barber shop and returned in half an hour. That about 6 o'clock Mrs. Mantyla's son Arne and wife came to the apartment and in a short time left. That Mrs. Mantyla left the apartment about 7 or 8 o'clock. That between 7 and 8 o'clock he collected $5 rent from roomers on the third floor and gave a receipt for it. That about 8 o'clock he went out to buy cigarettes and stepped into a hotel and pool hall, and returned to the apartment. At this time Mrs. Mantyla had returned to the apartment. That about 9 o'clock Arne Mantyla returned to the apartment and brought a half gallon of liquor with him. That at Mrs. Mantyla's request defendant took the *Page 375 jug of liquor upstairs to room No. 10 and left it. That Arne wanted money for the liquor which he brought. That he asked for it a second time. That defendant took from his pocket a $5 bill he had collected for rent, and Mrs. Mantyla took it away from him. That Arne left shortly thereafter. That Mr. and Mrs. Everett called in about the same time for a few minutes and then went upstairs. That he and Mrs. Mantyla were left alone. He said they were drinking coffee and coffee punch. He gave a detailed account of their quarrel over her intention to go away with another man and his demand for the money he claimed she owed him. He described how she took the gun from a particular bureau drawer, and holding it in her right hand, pointed it at him and said, "Here is how I will pay you." That he said, "You are crazy," and grabbed for the gun, when he got a shot and everything turned black. His own conduct as described by himself is utterly inconsistent with any claim of incapacity on account of drunkenness. While it is true that on cross-examination he stated that he was drunk, his subsequent answers destroyed the force of the statement, and left the proof of intoxication so slight and inconsiderable as to justify ignoring it entirely.
A very similar situation arose in State v. Cerar, 60 Utah 208,207 P. 597, 600, wherein this court said:
"It is further contended that the court's instruction on intoxication was erroneous in that it was not sufficiently specific in certain particulars, and further, that it did not conform to what is said upon that subject by this court inState v. Dewey, 41 Utah 538, 127 P. 275, and State v.Anselmo, 46 Utah 137, 148 P. 1071. In State v. Dewey, supra, the court's charge on the effect of intoxication in a criminal case was held to be narrower than the statute, and for that reason was held erroneous. True, it was there also held that the charge on the effect of intoxication in capital cases should be explicit and in such language as to aid the jury in arriving at a correct conclusion upon the elements of premeditation and deliberation, which are always present in such cases. To the same effect is the case of State v. Anselmo, supra. A mere cursory reading of those cases, however, will disclose that they are exceptional and peculiar with respect to the facts and circumstances there involved. In the Dewey Case the intoxication of the accused was of such an extreme and protracted nature that it *Page 376 had developed into delirium tremens, while in the Anselmo Case the evidence was to the effect that the accused from childhood had been afflicted with epilepsy, and that his relatives and ancestors had been so afflicted, and that the use of intoxicating liquors had an unusual and extraordinary effect upon his mind. These cases are therefore clearly distinguishable from ordinary cases of intoxication. While we adhere to the rule laid down in the two cases just referred to, yet where the evidence of intoxication is of that meager and unsatisfactory character, which it is in this case, and where the jury would have been justified in finding that the intoxication of appellant, if under the influence of liquor at the time the alleged offense was committed was nevertheless, not of that character which would afford any excuse whatever, the case is quite different. We are of the opinion, therefore, that although the instruction upon the question of intoxication was couched in general terms merely, it was nevertheless, sufficient in view of all the facts and circumstances in this case, and that the jury were not misled. To reverse the judgment in this case upon the ground that the charge upon intoxication constituted prejudicial error would require us to assume prejudice where, in view of the whole record, none is made apparent. Indeed, it would be, in one view, a travesty of justice."
This rule is stated in C.J. as follows:
"An instruction on intoxication may be refused where there is no, or not sufficient, evidence that defendant was intoxicated at the time of the crime. * * * An instruction as to intoxication is also erroneous if it is confusing or misleading or if it singles out or lays undue emphasis on the fact of intoxication apart from the other proof." 30 C.J. 362.
In People v. Price, 207 Cal. 131, 277 P. 316, a case in some of its aspects very similar to the one before us, the Supreme Court of California said:
"Both of appellant's contentions are based upon his position that he was intoxicated at the time the crime was committed, and that he was incapable, therefore, of premeditation. We have examined the record in the case, and find that it supports the verdict of murder in the first degree. It is true that the record shows defendant had been drinking intoxicating liquor just prior to the commission of the crime, and that he was under its influence, to some extent at least, when he fired the shots at his victim; but this fact furnishes no legal excuse. Section 22, Pen. Code. The evidence shows that, for *Page 377 several years, the defendant had been living with Maurillia Adame. She had previously been married, and was the mother of two children by this marriage. She was generally reputed to have been the wife of defendant, although they were not legally married. Defendant, according to some of the testimony, was engaged in the illegal sale of intoxicating liquor, and, according to his own account, he had been confined in jail for a time shortly before the crime we are considering was committed, for drunkenness. After his release, Maurillia Adame left him and went to live in another apartment. Defendant watched her movements and associations, telephoned to her, and attempted to persuade her to return to him. Upon her refusal, he secured a revolver from one of his associates, by representing that he could sell it at a good price. He then wrote a letter to the men with whom he was living, in which he stated: `When you come home, you may find me in the can (meaning jail). * * * I hope you will bring something to smoke. * * * Come down and see me. I may want you to bring some clothes back. * * * I have a watch. You come down. I will tell you where it is.' He then wrote to Maurillia Adame: `I ask you to come to me, but would not listen to me. It is too late now. I love you more than any one; so goodby.' The deceased was working in a laundry, and defendant came up to her on the street, as she was leaving for her luncheon. He had obtained some whisky that morning and had consumed some of it. At the time this was done, however, his plans seem to have been very definitely made.
"The provision of section 22 of the Penal Code, to the effect that, when purpose, motive, and intent is a necessary element to constitute the degree of crime, the jury may take into consideration the fact of intoxication in determining the purpose, motive, and intent with which the act was committed, is inapplicable here, because, as stated by the trial judge, there was no evidence of intoxication, and no claim made by the defendant that he was intoxicated at the time he planned or executed the crime. It is true, as considered by the trial court, that the defendant said he had drunk some whisky in the morning, and that the detective said he showed evidence of drinking at the time he was brought to the police station, but the claim of defendant at the trial was that he had secured a revolver for the purpose of committing suicide, and that he had started out at noon to send a note to the deceased, and had accidentally met her on the street; that he attempted to hand her the note, and she repulsed him in a manner which so angered and distracted him that, in a sudden rage, he shot her. This theory of the defense was before the jury, and they rejected it. There was insufficient evidence in the record regarding intoxication to warrant the giving of the instruction on this subject requested by the defendant." *Page 378
No reversible error was committed by refusing to give defendant's requested instructions upon the subject of intoxication.
Under the second assignment of error, appellant's counsel presents objections to the instructions given by the trial court to the jury concerning premeditation and deliberation. The instructions complained of are as follows:
No. 8. "You are instructed that the law requires that the killing, in order to constitute murder in the first degree, must be perpetrated `From a premeditated design,' with a specific intent to take life; still it does not require that such premeditated design shall exist in the mind of the perpetrator for any fixed period of time before the doing of the act which constitutes the crime. If there was such a design and determination to kill, deliberately formed in the mind, at any moment before the fatal act was done, it is sufficient.
"The terms `malice or malicious' import a wish to vex, or annoy, or injure another person, or any intent to do a wrongful act, established either by proof, or by presumption of law.
"The terms `wilfully' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to, it does not require any intent to violate law, or injure another or to acquire any advantage."
No. 17. "You are instructed that it is not necessary that malice, wilful intent, premeditation, or deliberation should have entered into the mind of the defendant for any length of time before the killing took place. It is sufficient if there was a design and determination to kill distinctly formed in the mind at any moment before the act was committed, no matter how brief that space of time may have been. And in this case, if you believe from the evidence beyond a reasonable doubt that the defendant feloniously shot and killed Minnie Mantyla, as charged in the information, and that before the shot or shots were fired, no matter how brief or short the space of time before, had formed in his mind a wilful, malicious, deliberate, and premeditated design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design, or purpose, and without any justifiable cause or legal excuse therefor, as explained to you in these instructions, then you should find the defendant guilty of murder in the first degree."
No exception was taken at the trial to either instruction, and the objections are argued here under an assignment of error "that the court erred in denying appellant's motion *Page 379 for a new trial." Were this not a capital case with a sentence of death, the matter would be disregarded for lack of exceptions and assignments of error.
There is no validity, however, in the objections. The complaint is that error was committed in defining the time which must ensue between premeditation and the act of killing, and, again, appellant relies upon what was said by this court upon the subject in State v. Anselmo, supra. In the Anselmo Case the court held it erroneous to instruct that "there need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as the successive thoughts of the mind." The Anselmo Case involved facts of an exceptional nature, and the decision was not unanimous. Still, the prevailing opinion in that case does not condemn as erroneous the instructions complained of here. The majority opinion there announced the correct doctrine to be that no fixed or definite time for premeditation is necessary, but that it must precede the killing by some appreciable space of time, however brief, sufficient for reflection and consideration, and the formulation of a definite purpose to kill.
To instruct that to constitute murder in the first degree the killing must be perpetrated from a premeditated design and with a specific intent to take life, but that such premeditated design need not exist for any fixed period of time, but is sufficient if deliberately formed in the mind at any moment however brief before the fatal act, and to say concretely, as was done in this case, that if the accused shot and killed the deceased, and that before the shots were fired, no matter how brief or short the space of time before had formed in his mind a wilful, malicious, deliberate, and premeditated design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design or purpose, and without any justifiable cause or legal excuse therefor, he should be found guilty of murder in the first degree, states the law as substantially laid down in the Anselmo Case, and is free from any legal error so far as concerns the question of the time which premeditation *Page 380 or deliberation must precede the act of killing. The authorities quoted in the Anselmo Case fully sustain this proposition. Further reference to legal authority is unnecessary.
A further question, not assigned as error, nor mentioned in the briefs or oral arguments, is thought deserving of consideration by the majority of this court. In the examination in chief of the defendant as a witness in his own behalf, he was asked by his counsel, "Did you at any time that night, or at any other time intend to kill Mrs. Mantyla?" An objection by the district attorney that the question was immaterial and irrelevant was sustained by the court. The defendant then testified that he had never threatened or said that he would kill the deceased and that he did not know how or who shot her, if she had been shot.
While, under the weight of authority, the defendant should have been allowed to answer the question objected to, the error is not one that requires a reversal of the judgment. The defendant testified to facts, which amounted to a denial of both the intent and fact of the killing. For him to have further testified that he did not intend to kill her would have added nothing substantial to his testimony. If the jury had believed what he testified to, he would not have been convicted.
A person accused of crime is by the Constitution and laws of this state surrounded with ample safeguards to protect him from oppression and injustice, and it is the duty of courts to secure to him his rights and see to it that he has a fair trial, according to the forms of law. But that duty is fulfilled when his substantial rights have been preserved. If convictions are to be reversed and set aside because of formal or technical errors, plainly not affecting the substantial rights of the accused or the result of the trial, the enlightened judicial opinion of the times must be defied and the express provision of our own statutes ignored. Comp. Laws Utah 1917, § 9231, provides:
"After hearing an appeal, the court must give judgment without regard to errors or defects which have not resulted in a miscarriage *Page 381 of justice. If error has been committed it shall not be presumed to have resulted in a miscarriage of justice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment."
In this case there was no error of a substantial nature. The defendant had a fair trial. The evidence of his guilt was ample and convincing. There appears to be no miscarriage of justice.
The judgment should be affirmed.