Commonwealth v. M'Pike
57 Mass. 181
Mass.
1849
Check Treatment
Dewey, J.

1. The admission in evidence of the statement of the party injured, as to the cause and manner of the injury which terminated in her death, may be sustained upon the ground, that the testimony was of the nature of the res gestee. The witness describes the situation in which he found the party, her appearance, and her request for assistance, and, in connection therewith, her declaration of the cause of the injury. The period of time, at which these acts and statements took place, was so recent after the receiving of the injury, as to justify the admission of the evidence as a part of the res gestee. In the admission of testimony of this character, much must be left to the exercise of the sound discretion of the presiding judge.

2. The record of the former conviction was competent evidence, for the very limited purpose for which it Avas admitted by the court. It furnished no competent proof, in itself, of a former conviction of the assault, Avhich was the *185subject of inquiry; but the identity of the cases could only be established by other evidence.

But the identity of the person, and the identity of the transaction, it is conceded, were fully shown, or admitted. Such being the case, for the limited purpose for which it was received, the court are of opinion, that the record introduced was admissible. As evidence of a distinct offence committed by the defendant, or for the purpose of showing his disposition to engage in such assaults, the record would be incompetent and inadmissible.

3. The next point raised by the bill of exceptions presents the question, whether, upon an indictment for manslaughter, the defendant must be acquitted, if the evidence satisfies the jury that the homicide was committed with malice aforethought. The argument, urged in favor of a ruling to that effect, is attempted to be sustained, upon the ground, that, by the effect of a trial on an indictment for a minor offence, the defendant is deprived of certain privileges, which are incident to all capital trials; as, for example, the right of twenty peremptory challenges, the aid of the commonwealth in procuring the attendance of witnesses, and in the assign ment of counsel to conduct his defence, &c.

The only cases, that seem to give any sanction to this ground of exception, are those in which the defendant, under an indictment for a higher offence, is found guilty of a minor one; as, in the case of an indictment for felony in England, if the jury find the facts to support only a charge of misdemeanor, a verdict of guilty of the smaller offence is not authorized, because, by such indictment for felony, the defendant loses the benefit of having a copy of the indictment, a special jury, and making his full defence by counsel. 1 Chitty, C. L. 639 ; Foster, 328.

But, even in the case supposed, the court will not direct an acquittal, but will discharge the jury of the indictment for felony, for the purpose of enabling the public prosecutor to •present another indictment for the less aggravated crime See Chitty and Foster, as above cited.

*186The cases referred to differ however somewhat from the case at bar, as the facts found by the jury in the former clearly show, that no indictment could ever have been properly found for the higher crime, the party being only guilty of the smaller offence. Hence the government ought not, by means of an unauthorized proceeding, to deprive the party accused of the ordinary safeguards, which the law has thrown around him for his protection. In the case at bar, on the other hand, the defendant has committed the crime for which he stands indicted. His offence has all the elements of manslaughter. The evidence proved him guilty of every thing alleged in this indictment. It does all this, and the only objection is, that it superadds to the facts thus found, that the killing was with malice aforethought.

In such a case, the party on trial has no reasonable ground for complaint. The government have elected to proceed against him for the minor offence, and the defendant has secured to him all the privileges, which are incident to a trial for such offence. It is not for him to say, that his crime has another element in it, which, if charged in the indictment, would have constituted it a higher offence, and more severely punishable. Further, the issue submitted to the jury does not properly present any such question of fact for them to try, as the defendant proposed to raise before them. The rule, contended for on the part of the defendant, would facilitate the escape of the guilty from all punishment. Suppose the unlawful killing to be fully established upon the evidence, but whether under such circumstances as would reduce the crime to manslaughter, to be a matter of reasonable doubt. The public prosecutor, deeming it advisable, upon the whole evidence, to put the party on his trial for manslaughter only, and the grand jury finding a bill to that effect, the defendant asks that the jury may be instructed, that if they believe that the act was committed with malice aforethought, the defendant is entitled to an acquittal, and the judge so instructs the jury. Eleven of the jury are satisfied, that it is a case of homicide without malice prepense ; *187all the jurors agree that the evidence proves an unlawful killing, and that the defendant should be found guilty, but for the belief of one of them, that the case is the more aggravated one of murder. Under the proposed ruling, no conviction could take place, for no verdict would be rendered. Suppose the same case to be transferred by an indictment for murder to the proper forum for a capital trial. Malice prepense is now an essential ingredient in the offence charged, but in the case supposed, it may be readily anticipated, that a majority of the jury will not render a verdict of guilty of murder ; and thus the party may wholly avoid a conviction, and the unlawful killing remain unpunished. This consequence, I am aware, should have no effect to abridge the rights of the defendant, or deprive him of any legal ground of defence. But there being no decisive authority upon the point, and the question being one which is now presented for the first time, for a judicial decision by this court, these considerations may be entitled to their proper weight. It seems to us, that this objection is not open to the defendant upon this indictment, and that wherever the grand jury deem it proper to find only an indictment for manslaughter, and the party is put upon his trial for that offence, he has no legal right to demand an acquittal, upon the ground, that, taking the whole evidence, the case thereon is one of killing with malice prepense. How far, in such a case, it may be proper for the court, upon its own suggestion, or upon the motion of the public prosecutor, to discharge the jury, with a view of having the case presented in another form, it is unnecessary now to decide. The exception taken upon this point is therefore overruled.

4. The ruling upon the fourth point is to be taken with reference to the case stated in the bill of exceptions. The evidence introduced tended to show, that a mortal wound had been inflicted upon the body of the deceased, from the effects of which the party would have died; and that in this situation surgical aid was administered, under the hopes that it might be successful. Although the event proved such *188surgical operation to be ineffectual, in giving relief, and it was the immediate cause of the death of the party, yet the defendant is responsible for her death, if he had previously given her a mortal blow, in the attempt to save her from the effects of which, a surgical operation apparently necessary was resorted to.

Exceptions overruled.