People v. Newton

8 Cal.App 3d 359, 87 Cal.Rptr. 394 (1970)

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Nature of the Case

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Facts

Newton (D) was stopped by Officer Frey who ordered him out of his car. An altercation ensued. D had drawn a gun and in the struggle for possession Heanes, another officer, was wounded. At some point in the continuing altercation, D was shot in the midsection, but D got the gun and fired several shots at Frey resulting in his death. D states that he had carried no gun and that the altercation had started when Frey struck him for protesting his arrest. D could not recollect with any certainty what or how Frey was shot. D called Bernard Diamond, M.D., who testified that D's recollections were 'compatible' with the gunshot wound he had received; and that 'a gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so. D wanted the jury to be instructed on the subject of unconsciousness as to the crime of homicide, but he withdrew that request. The trial court refused to instruct on self-defense. The trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and the second (including the element of malice aforethought). The court also gave instructions on voluntary manslaughter and diminished capacity. D was convicted of voluntary manslaughter. D appealed. D asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide.