I have carefuly examined the evidence in this case, for the purpose of finding anything that would justify the conclusion that the appellant entertained any malice, premeditation or deliberation before or at the time of the commission of the offense of which he was convicted.
The appellant is a Nez Perces Indian and the decedent was a Colville Indian. They had been married about one year and had grown children by previous marriages. They had both been on a protracted drunken spree for some time (three or four weeks), definitely and continuously over two *Page 783 days; and on the date of the alleged murder were both in a dazed state of intoxication.
It is a well known and recognized fact that the use of alcohol is more demoralizing and dangerous among Indians than with white people. Indeed, it has been so well recognized, for more than a century, that Congress long since enacted prohibitory laws against selling or giving liquor to Indians. (25 U.S.C.A., sec. 241, p. 128, derived from sec. 4, Act of July 9, 1832, chap. 174, 4 Stat. 564.)
Here it is admitted that these people (part of the time accompanied by others) were drinking to such an extent that they couldn't get about from place to place; and that this was true of the decedent, is evidenced by the testimony of Dr. Menne, of the Oregon Medical School, who analyzed the stomach content, blood, and portions of the body of the decedent, and said: "I would conclude that death was due to the multiple injuries and shock, with alcohol as a contributing factor." He further said that he found that alcohol was present in thestomach and in the blood. Dr. Speir who performed the autopsy said the "shock" was "traumatic."
Appellant's daughter and decedent's daughter had been living at the Frank home for considerable time, each attending school at Spalding. They each testified that they never saw Frank strike his wife at any time. Arthur Bolen and Maud Bolen lived within 200 or 250 yards of the Frank residence and used the Frank barn, standing thirty to forty yards away, to which they went almost daily. Both testified to being back and forth constantly and almost daily at the Frank house; that they at no time ever saw him strike her although one of them did, on one occasion, hear sounds coming from the house, which made her think that they were having trouble, and that Frank might be beating his wife. At least two witnesses testified to seeing them on the back porch the forenoon of the day on which it is claimed the murder was committed; and appellant was helping to wash some dried blood off his wife's face; and at that time there was no appearance or evidence of any ill feeling between them. On the day before her death some neighbors *Page 784 called and found that they had both been drinking and they were beating the tom-tom and singing.
Appellant explained that the wound on his wife's face was caused by her falling against the stove and that on another occasion she fell out of the bed; and the evidence of all the witnesses who saw them, including their daughters, is to the effect that she was, and had been, in such a state of intoxication that it was exceedingly difficult for her to walk. All who saw appellant on the day of the homicide say he was beastly drunk.
I call attention to these facts as circumstances tending more strongly to disprove malice, deliberation, and premeditation than they do to show any homicidal deliberation and premeditation.
While voluntary intoxication is no defense to the charge of murder, the state and condition of intoxication is, nevertheless, competant to be considered, in determining the capacity of the defendant to form the homicidal intent, where the evidence fails to disclose any pre-existing malice, premeditation or motive. (Long v. State, 109 Ohio St. 77,141 N.E. 691; Aszman v. State of Indiana, 123 Ind. 347,24 N.E. 123, 8 L.R.A. 33, 37; Underhill, Crim. Ev., 3d ed., sec. 277.) Our statute requires the proof of "malice aforethought" in order to convict a defendant of murder. (I. C. A., sec. 17-1101.) Malice was not shown in this case.
In my opinion, the judgment in this case should be modified, to limit the imprisonment to the maximum allowed in case of conviction of manslaughter and, as so modified, it should be affirmed. I cannot concur in the affirmance of the judgment convicting appellant of first degree murder.
Morgan, J., concurs. *Page 785