Opinion
December 4, 1950.
Judgment of the County Court of Kings County, convicting appellant of the crime of murder in the second degree, reversed on the law and a new trial ordered. The findings of fact implicit in the verdict are affirmed. It was for the jury to determine, under all the circumstances disclosed, whether appellant was guilty of murder in the first degree, as charged in the indictment, or of one of the other grades of homicide; and it was incumbent on the People to establish, as an essential element of the crime of murder in the second degree, an intent on the part of appellant to kill the deceased. Evidence was adduced on the trial that appellant had been drinking, and the jury might have concluded therefrom that he was intoxicated at the time of the commission of the crime. Under such circumstances it was error to refuse to charge the substance of section 1220 of the Penal Law, which would have permitted the jury to consider such evidence as bearing on appellant's intent to kill. Error was also committed in refusing to charge, as requested, the substance of section 390 of the Code of Criminal Procedure. Although the evidence adduced was sufficient to establish appellant's guilt, the errors alluded to, particularly that with respect to the evidence of intoxication, were substantial and may not be disregarded. (Cf. People v. Martin, 33 App. Div. 282; People v. Gerdvine, 210 N.Y. 184; People v. Leonardi, 143 N.Y. 360, and People v. Koerber, 244 N.Y. 147.) Nolan, P.J., Johnston, Adel and Wenzel, JJ., concur; MacCrate, J., not voting.