In a retrial of a man found guilty of causing grievous bodily harm by dangerous driving, what is the test for determining whether or not he was capable of forming that 'malice' which distinguished murder from manslaughter?

Thirdly, it is now clear, in view of People v. Conley [1966] 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, that the jury should have been instructed to consider, in the light of the evidence as to ihis intoxication (and we assume on a retrial the evidence of his low intelligence) whether or not he was capable of forming that 'malice' which distinguished murder from manslaughter and that an instruction, on the general lines of that suggested in Conley ⁷ should also have been given. ⁸

[267 Cal.App.2d 375]