195 Mass. 560 | Mass. | 1907
The evidence as to the previous burglaries, or attempted burglaries, in the defendant’s house within a year before the commission of the homicide, and in Lindley’s house four years before that time, was rightly excluded. It could have no proper tendency to show any probability of another burglary being committed in the defendant’s house at the time in question. It had no legitimate bearing upon any issue involved in the case. Commonwealth v. Abbott, 130 Mass. 472. Even if it could have been considered upon the question of the defendant’s state of mind at the time of the homicide, evidence of these detached facts might well be excluded as too remote. Commonwealth v. Trefethen, 157 Mass. 180, 183, 184. Lane v. Moore, 151 Mass. 87, 90, 91. This was evidence merely of two unconnected matters, three years apart, the latest being about a year before the time in question; there was nothing to show a continuous state of mind or a continued course of conduct, as in Commonwealth v. Holmes, 157 Mass. 233, 240.
The other exceptions are to the refusal of certain requests for instructions. Some parts of the charge to the jury are stated in the bill of exceptions, the rest not being set out;' but no exceptions were saved to the instructions given, and it now must be presumed that these were full and accurate.
The eighth, ninth and tenth requests were directed to a possible finding that the defendant was guilty of manslaughter only. They have become immaterial by the verdict, and need not be especially considered. They could not have been given in any event. The eighth and tenth requests did not exclude the existence of criminal recklessness; the ninth overlooked the fact that a specific intention to kill is not necessary to manslaughter, or even in every case, to murder. See Commonwealth v. Webster, 5 Cush. 295, 304; Commonwealth v. Hawkins, 157 Mass. 551, 553. It is now as fully recognized “ that a man may commit murder or manslaughter by doing otherwise lawful acts recklessly as that he may by doing acts unlawful for independent reasons, from which death accidentally ensues.” Commonwealth v. Pierce, 138 Mass. 165, 175.
The second and twelfth requests were given; and we are of opinion that the first was given in substance. The jury were told that the burden was upon the government to prove beyond reasonable doubt every essential point in its case, and that they were to find the intent of the defendant from all the facts, including what he said and his use of the gun. This necessarily excluded from the consideration of the jury any presumption that in firing the gun he intended to shoot the deceased or any one else. Indeed it does not appear that the existence of any such presumption was asserted by the prosecution. But it
The third, fourth and seventh requests could not have been given. As has been already pointed out, murder may be committed without any actual intent, either to bill or to do grievous bodily harm. Commonwealth v. Chance, 174 Mass. 245, 252. There was evidence upon which the jury had a right to find that the defendant intentionally shot and killed the deceased without any justification whatever. If they did so find, they had a right to find also that the defendant acted with malice. Commonwealth v. Fox, 7 Gray, 585. In that case it would not be material whether he had or had not recognized the deceased.
As to the fifth, sixth, seventh, fourteenth, fifteenth and sixteenth requests, it is enough to say that without intimating that these correctly stated the law, under the instructions given to the jury they must have found it proved beyond a reasonable doubt that the defendant with malice aforethought fired upon the deceased intending to wound or kill him, without any other justifying or excusing circumstances than such as may have arisen from his voluntary intoxication. This finding negatives the facts assumed in the requests we are now considering. It is not necessary to consider whether any of them should have been refused for the additional reason that there was no evidence to support them. The defendant was not aggrieved by their refusal.
Upon the thirteenth request the judge ruled that insanity, whether resulting from intoxication or from any other cause, would prevent criminal responsibility, but that intoxication would not. He also read to the jury quotations from the opinions in Choice v. State, 31 Ga. 424, 472; Commonwealth v. Hawkins, 3 Gray, 463,466; Commonwealth v. Malone, 114 Mass. 295, 298; and Springfield v. State, 96 Ala. 81, 86. We need not however especially consider the instructions given; for, as we have said before, they were not excepted to; nor do we see any ground upon which they were open to objection. The rights of the defendant were fully protected, and the request as presented was rightly refused. See, beside the cases already cited, Commonwealth v. Gilbert, 165 Mass. 45 ; United States v.
^Exceptions overruled.