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District Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nicholas GORSHEN, Defendant and Appellant.*

Cr. 3423.

Decided: June 12, 1958

Garry, Dreyfus, McTernan & Keller, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

Appellant was convicted by the trial judge sitting without a jury of murder in the second degree.

Appellant was working as a longshoreman under the decedent O'Leary. O'Leary was dissatisfied with appellant's conduct on the job and ordered him to quit working. After an argument during which appellant spit in O'Leary's face a fight followed in which O'Leary inflicted on appellant a deep cut below his left eye. Appellant was taken to the emergency hospital for treatment. Thereafter appellant stated that he was going home to get a gun and kill O'Leary. He did go home, secured a pistol and returned. Three officers who had been warned of his threat searched appellant but failed to discover the gun. Appellant thereafter in the presence of one of the officers shot and killed O'Leary, also wounding with the same bullet one Nelson.

A psychiatrist called as an expert by appellant testified that he was an ambulatory schizophrenic who had for many years been subject to waking trances in which he had visions of persons and animals engaged in bizarre conduct with sexual connotations. Appellant was a religious man and attributed these visions to temptations by devils. Characteristic of such schizophrenic state, as a man reaches middle age, is worry over loss of sexual potency and appellant compensated in his case for such worry by trying to be good at his work. When O'Leary criticized his work and put him off the job, using a Russian epithet which indicated that he was a sexual pervert, the border line of complete insanity was reached. Unless appellant proved his manliness to himself in some effective fashion he would become entirely insane. This took in appellant the form of an uncontrollable urge to kill O'Leary. The crucial testimony of the psychiatrist was: ‘They're—it is, in my opinion, no element of free will involved in the events; it's like shooting a kind of psychological gun. Once events have pulled the trigger, nothing on God's earth will stop it, the course of events; and just as you saw in this man, even the fact that policemen were right at his elbow and there was no possibility of getting away with this, still it couldn't stop the train of obsessive thoughts which resulted in the killing, so that I think such individual under no stretch of the imagination could be considered as acting with any sort of free will.

‘I feel that Mr. Gorshen here did not commit this act intentionally, that he did not have the mental state which is required for malice aforethought or premeditation or anything which implies intention, deliberation or premeditation.’

The expert further testified that appellant was sane under the legal test of knowing right from wrong.

The trial judge, largely under the influence of this testimony, found appellant guilty of second degree murder. Appellant argues that under this evidence, if believed, appellant did not have the necessary malice aforethought for murder, and the judgment should be reduced to manslaughter.

The trial judge with commendable fairness stated that he did not believe the law in this state would permit him to find from the expert's testimony that appellant acted without malice aforethought. He concluded: ‘Now, whether you have free will or not free will, that's so advanced, we're not prepared for that * * * whether he was compelled to do this because of some mental condition, that is so advanced and so far from us that we don't understand it.’

We feel that it is fairly deducible from the trial judge's remarks that he felt himself powerless under the law to find, giving the expert's testimony its full weight, that the homicide was committed without malice aforethought.

This squarely presents the question whether the killing of a human being under a so-called ‘irresistible impulse’ arising from a diseased or abnormal condition of the mind is a defense in this state to the charge of murder, where the slayer has the mental capacity to realize that what he is doing is morally and legally wrong.

While a majority of the courts of this country apply the so-called ‘knowledge of right and wrong’ test and refuse to admit ‘irresistible impulse’ as a defense (1 Warren on Homicide, Perm.Ed., § 61, pp. 189–193; 26 Am.Jur., Homicide, § 79, p. 212; notes in 70 A.L.R. at pages 675–684; 173 A.L.R. at pages 395–397) a considerable minority have accepted the defense of ‘irresistible impulse’ (1 Warren on Homicide, Perm.Ed., § 61, pp. 195–196; 26 Am.Jur., Homicide, § 80, pp. 213–214; notes in 70 A.L.R. at pages 663–675; 173 A.L.R. at pages 392–395).

The Supreme Court of this state in the past has consistently aligned itself with the majority in holding that ‘irresistible impulse’ is not a defense to a charge of crime. 25 Cal.Jur.2d, Homicide, § 254, p. 786; 14 Cal.Jur.2d, Criminal Law, § 218, p. 465. In the latest expression of the Supreme Court which we have found on the subject, People v. French, 12 Cal.2d 720, at page 730, 87 P.2d 1014, at page 1019, that court said: ‘Moreover, it has long been the settled law of this state that neither emotional, moral nor partial insanity nor insane delusion nor hallucination, nor the irresistible impulse theory (the accused being conscious as to the nature and quality of his act and that it was wrongful and punishable by law), affords grounds in this state as the basis of a defense or as an excuse for the commission of a homicide.’ (Emphasis ours.)

Similarly in People v. Walter, 7 Cal.2d 438, 440, 60 P.2d 990, 991, the Supreme Court said: ‘It is the well-settled rule of law in this state, which has existed since the early organization of our state government, that moral insanity, as an independent state—that form of insanity in which the patient knows the nature of his act fully but is unable to prevent it, and which is sometimes known as uncontrollable or irresistible impulse—has no standing in this state.’

This unbroken line of authority has not been expressly overruled. It is true that in People v. Wells, 33 Cal.2d 330, 202 P.2d 53, 58, the Supreme Court held that in a prosecution for assaulting a prison guard ‘with malice aforethought’ under Penal Code, section 4500, it was error to exclude expert testimony which would have a tendency to prove that the defendant acted solely under the honest, though mistaken, belief, induced by an abnormal physical and mental condition, that his conduct was necessary to defend himself from attack. The court said, 33 Cal.2d at page 345, 202 P.2d at page 62: ‘If he acted only under the influence of fear of bodily harm, in the belief, honest though unreasonable, that he was defending himself from such harm by the use of a necessary amount of force, then defendant, although he would not be guiltless of crime, would not have committed that particular aggravated offense with which he is charged, for the essential element of ‘malice aforethought’ would be lacking.'

It is to be observed of the Wells case that the court was not dealing with ‘irresistible impulse’ in which the defendant realizes the wrongfulness of his act, but with a delusion of necessity to resist a fancied attack in which the defendant would regard his conduct as rightful self-defense and would not consider it legally or morally wrong. We can therefore find no clear indication in that case that the Supreme Court intended, or is prepared, to change the long-established rule that ‘irresistible impulse’ is not a legal defense in California.

An intermediate appellate court is bound to follow the clear precedents laid down for it by the Supreme Court of the State. The refusal to admit the defense of irresistible impulse where such irresistible impulse is the result of diseased mentality has been widely criticized, but it is not for us to attempt to evaluate, or reexamine the basis of, a rule of law settled by an unbroken line of decisions of our highest court. If the Supreme Court is in a frame of mind to do so this case will afford it a clear opportunity.

Judgment affirmed.

DOOLING, Justice.

DRAPER, J., concurs. KAUFAMAN, P. J., concurs in the judgment.