I concur with Judge ANDREWS but desire to add the following:
That the defendant shot and killed the deceased has been proved beyond any reasonable doubt. The evidence shows that the killing happened while the defendant was committing the crime of robbery — it was a holdup case — in which the defendant at the point of a pistol attempted to rob the deceased.
The attempted defense was that the deceased attacked the defendant leaving the store, and in the mixup the defendant's pistol went off accidentally. No one takes any stock in this defense, not even the defendant's counsel, who admitted on the argument that the defendant was guilty of a crime.
A discussion has arisen over the effect of liquor upon the defendant and whether the judge fully covered the law regarding intoxication as affecting crime and the degrees of crime. In my judgment the discussion is immaterial to this case, as the evidence clearly shows that the defendant, if he had been drinking, was not so intoxicated as to lessen the crime, but rather to aggravate the seriousness of it. In the first place, he is the only *Page 158 one who states that he had been drinking, and then on the stand as a witness remembers every detail of his conduct and actions on the night in question. He boldly states how a few hours previous to killing the deceased, he had held up a restaurant keeper at the point of a pistol — pointed a gun at him and told him to hold up his hands. The money he took he says he did not intend to steal, that it was a kind of joke; the kind that the people of this State do not appreciate. It was no joke to the restaurant keeper. Later, the defendant details how he entered the place of the deceased and what happened there. Surely the defendant when he had sufficient mind and intelligence to recollect months afterwards all that happened on the night of the shooting, was not under such influence from liquor as to lessen in any way his criminal acts, or deprive him of criminal intent. His intoxication may have excited him and weakened his judgment, but it did not absolve him from the responsibility which the law attaches to one who kills another in an attempt to take his property.
I am for affirmance for these reasons.
CARDOZO, McLAUGHLIN and LEHMAN, JJ., concur with POUND, J.; ANDREWS, J., dissents in opinion in which HISCOCK, Ch. J., concurs and in which CRANE, J., concurs in memorandum.
Judgment reversed, etc. *Page 159