Defendant Roy O. Cornelison appeals from his second-degree murder conviction. Finding prejudicial error, we reverse defendant's conviction and remand for a new trial.
Defendant was charged by information with first-degree murder. At trial, defendant admitted shooting the victim. He claimed self-defense and, further, raised the affirmative defense of intoxication. Section 18-1-804, C.R.S.1973.
In its instructions, the district court defined specific intent and further instructed the jury that first-degree murder and the lesser included offenses of second-degree murder and criminally negligent homicide required specific intent by defendant. The court, however, refused defendant's tendered instructions on voluntary intoxication as an affirmative defense. The jury returned a guilty verdict on second-degree murder.
Defendant correctly contends that the district court erred in refusing to instruct the jury that evidence of defendant's voluntary intoxication at the time of the offense could be considered in determining whether he had the requisite specific intent to commit the crime of second-degree murder. It is not contested that there was sufficient evidence to justify such an instruction. People v. Truesdale, Colo., 546 P.2d 494. The People argue, however: (1) second-degree murder is not a specific intent crime; and (2) by statute, voluntary intoxication is no defense to second-degree murder. It is true that under the prior murder statute, C.R.S.1963, 40-2-3, second-degree murder was not a specific intent crime, and voluntary intoxication was no defense to murder in the second degree. Watkins v. People, 158 Colo. 485, 408 P.2d 425; Brennan v. People, 37 Colo. 256, 86 P. 79.
The legislature, however, redefined second-degree murder in the Colorado Criminal Code. Section 18-3-103(1), C.R. S.1973,
In our view, it is clear from the express language used, and we hold, that second-degree murder, under either subsection (1)(a) or (1)(b), is a specific intent crime. The court correctly instructed the jury on specific intent as to second-degree murder.
The People recognize the principle that voluntary intoxication is an affirmative defense to specific intent crimes generally, e. g., People v. Scheidt, 186 Colo. 142, 526 P.2d 300 (robbery); People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (theft); Dolan v. People, 168 Colo. 19, 449 P.2d 828 (first-degree murder); Claxton v. People, 164 Colo. 283, 434 P.2d 407 (kidnapping, assault with intent to rape).
The People argue, however, that, even though second-degree murder may be a specific intent crime under the Criminal Code, nonetheless, voluntary intoxication is not an affirmative defense to second-degree murder. This is so, it is argued, because the second-degree murder statute, in section 18-3-103(2), provides: "Diminished responsibility due to lack of mental capacity is not a defense to murder in the second degree." The People contend that voluntary intoxication resulting in an incapacity to form a specific intent is in effect a lack of mental capacity—or diminished responsibility—and, therefore, the legislature has specifically abolished that defense as to second-degree murder.
In response, the defendant cites the statute concerning criminal responsibility, section 18-1-804(1), which provides in part, "* * * evidence of intoxication of the defendant may be offered by the defendant when it is relevant to negative the existence
Moreover, section 18-1-805 provides: "The issue of responsibility under sections 18-1-801 to 18-1-804 is an affirmative defense."
In applying these statutes, we invoke two principles of statutory construction. Statutes in pari materia should be reconciled if possible, Colorado v. Beckman, 149 Colo. 54, 368 P.2d 793, and criminal statutes must be strictly construed in favor of the accused, Cokley v. People, 168 Colo. 280, 450 P.2d 1013.
We are faced with the dilemma created by the apparently irreconcilable provisions of the statute which, on the one hand, grant affirmative defenses of voluntary intoxication and impaired mental capacity for the purpose of negating specific intent, and, on the other hand, the provision of the second-degree murder statute which denies the affirmative defense of "diminished responsibility due to lack of mental capacity."
We construe section 18-3-103(2) to mean that diminished responsibility due to lack of mental capacity is not a defense, unless it precludes a defendant from entertaining the requisite specific intent to commit the crime of second-degree murder. The absence of specific intent, like the absence of any other element of the crime, mandates an acquittal. And under section 18-1-804(1) a defendant's voluntary intoxication may be evidence of his inability to entertain the specific intent required for conviction of second-degree murder.
To hold otherwise would effectively relieve the People of the burden of proving every essential element of the charge beyond a reasonable doubt. As the Supreme Court of Pennsylvania observed in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661:
More than an anomaly, such a holding would deprive defendant of his right, secured by the due process clause, to require proof beyond a reasonable doubt of every element of the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 2d 368. See People v. Kanan, 186 Colo. 255, 526 P.2d 1339.
We therefore hold that the district court committed reversible error in refusing to instruct the jury on defendant's affirmative defense of voluntary intoxication as allowed by section 18-1-804, C.R.S.1973. United States v. Swallow, 511 F.2d 514 (10th Cir. 1975); People v. Meller, 185 Colo. 389, 524 P.2d 1366.
The judgment is reversed and the cause remanded for a new trial.
KELLEY, GROVES and ERICKSON, JJ., concur.