50 Mass. 93 | Mass. | 1845
The opinion of a majority of the court was delivered by
A motion has been submitted by the counsel
On the present trial, after the jury had retired to deliberate on their verdict, and had been some time in consultation, they requested a further instruction of the court; and the court, after a short deliberation, gave them instructions upon the point proposed. The court, although they took as much time for consideration as the circumstances of the case then admitted, had yet little time and opportunity for reflection and the examination of authorities, and were very willing to reconsider the subject, under the light which might be thrown upon it, by the arguments of counsel and the citation of authorities. We have had the aid of a full and able argument by learned counsel, and are now prepared to state the result. It is a subject of unfeigned regret, that on a question of this extreme delicacy and magnitude, the members of the court have not been able to come to a unanimous opinion. But after a repeated examination of authorities, and the fullest discussion and interchange of opinion, we have not been able to come to such a desirable result. It has become my duty to state the opinion of a majority of the court.
In order to the better understanding - of the question put by the jury, and the instructions of. the court given in answer thereto, it seems proper to state briefly the course of the trial and the questions in fact submitted to the jury.
The prisoner was indicted for the wilful murder of James Norton, on the night of the 2d of July 1844, between eleven and twelve o’clock. There was plenary evidence, tending to prove that the said Norton, at the time and place stated in the indictment, received a mortal wound by a dirk knife, the blade of which had penetrated his heart, and was found, on a post mortem examination, broken off in the body of the deceased ; of which wound he almost instantly died; and that
The question put by the jury, some time after they had withdrawn from the bar-, and the answer thereto by the court, were thus: [Here the chief justice stated the question and the answer, as set forth, ante, p. 94.]
The motion for a new trial is made on the ground that this was a misdirection, and that the jury should have been instructed that, if there was sufficient evidence to raise a reasonable doubt, whether the homicide was malicious, or committed in heat of blood in mutual combat, or suddenly, upon adequate provocation, so as to extenuate it to manslaughter, then they should return a verdict of manslaughter. This is the question we are to consider.
In the first place, it is proper to consider what the nature of the homicide was, in the present case, to distinguish it from other species of homicide, and consider what was the nature and tendency of the evidence, upon which the instruction was prayed by the jury.
There may be cases of homicide, properly ruled murder by implied malice, when there was no intention to take the life of the deceased party; as where one wantonly throws timber
The distinguishing characteristic of murder is homicide with malice aforethought, express, or implied by law. The effect of the rule presented to the jury was, that if it was proved, beyond reasonable doubt, that the defendant had wilfully and voluntarily inflicted a mortal wound upon the deceased, malice was to be inferred from this act, unless such facts were proved, by a preponderance of the evidence, as would extenuate the homicide and reduce it to manslaughter. This rule seems to rest on well settled principles, and to be supported by a great weight of authorities.
But, however suddenly any act is done, the intent to do it precedes the doing of it, and the act is done in pursuance of the intent and formed design. However short the interval, the intent necessarily precedes. This is manifest from the ordinary case of a mortal bloAV given, with a deadly weapon, immediately upon words of provocation. Words, however aggravating, not being considered a sufficient provocation to extenuate the offence to manslaughter, it is uniformly held to be murder, an act done with malice prepense ; and it is not the less preconceived, because the act immediately followed the guilty intent. There was obviously no intent to do the act of violence, until the provocation was offered; and although it is said that the act of resentment follows immediately, yet such is the rapidity with which the mind operates and forms its purposes, and so instantaneously does the hand execute the purposes of the Avill, that the moment which intervenes is sufficient for the operation of the malignant motive. OtherAvise, the suddenness of the mortal blow, on provocation however slight, must exclude the implication of malice. But the law, in such cases, does impute malice to the act, because it iloes not consider the weight of the provocation such as
Malice, in the definition of murder, is imputed to an act done wilfully, malo animo, an act wrong in itself, injurious to another, and for which there is no apparent justification or excuse. Such justification or excuse must depend on the existence of facts; and such facts must be proved and found, in order to be the basis of any judicial decision. The wilful and voluntary act of destroying the life of another is an act wrong and unlawful in itself, injurious in the highest degree to the rights of another, being the greatest wrong which can be done to him, contrary to the laws of nature as well as society, and in violation of the plainest dictates of conscience. The natural and necessary conclusion and inference from such an act wilfully done, without apparent excuse, are, that it was done malo animo, in pursuance of a wrongful injurious purpose, previously, though perhaps suddenly, formed, and is therefore “a homicide with malice aforethought,” which is the true definition of minder. And it appears to us, that this is not a forced, arbitrary, technical or artificial presumption of law, but a natural and necessary inference from the fact. This will be more apparent from considering what malice, in legal contemplation, is, and how it is inferred from illegal and wrongful acts, .in other cases of crimes and offences of less magnitude.
Malice, although in its popular sense it means hatred, ill will or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; the wilful doing of an injurious act without lawful excuse.
Mr. Justice Bayley, m giving the opinion of the court in Bromage v. Prosser, 4 Barn. & Cres. 255, though on a subject widely different from homicide, thus gives the legal description of malice, in contradistinction to the popular sense, in
These instances, taken from cases having no analogy to the crime of homicide, are adduced to show, that the presumption of malice, from a wrongful and injurious act wilfully done, when applied to homicide, is not technical, or artificial, or invented for the particular occasion, but is the result of a mode of legal reasoning which is of general application.
The same doctrin is laid down, as the undoubted law of
I shall have occasion, hereafter, to state more fully that the term “ deliberate,” as used in the first of these passages, does not, in its legal acceptation, so much import an act done after time for reflection, as a voluntary act, an act done upon motive, of purpose arid design, in contradistinction to acts done in the heat of passion, a paroxysm of resentment, in which reason and choice, for the moment, have no agency. The books constantly speak, in this connexion, of a deliberate act, however sudden. Whereas, if deliberation implied time and reflection, a deliberate act could never be sudden. So it has been held in Pennsylvania, under a statute which requires premeditation to constitute murder in the first degree, that the intention to kill, though immediately executed, is still the true criterion of the crime, and that the intention of the party can be collected only from his words and actions. Respublica v. Mulatto Bob, 4 Dall. 146. And in various other cases under the statute, it has been decided that, where it appears from the whole evidence that the crime was, at the moment, deliberately or intentionally executed, the killing is murder. It is sufficient, if the circumstances of wilfulness and deliberation are proved, though they arose and were generated at the period of the transaction. Commonwealth v. Dougherty, 1 Browne, Appx. xviii. Pennsylvania v. M'Fall, Addison, 257.
I will add a few other authorities, to show that the inference of malice from unlawful acts is not an artificial rule of law, but a natural inference, legitimately deduced from facts admitted or proved, and that it is not peculiar to the law of homicide, but prevails in all other departments of the criminal law. In The King v. Dixon, 3 M. & S. 11, the defendant was indicted for delivering bread, mixed with unwholesome and noxious materials, as good and wholesome bread, for the use of the children of the Royal Military Asylum at Chelsea. There was a motion in arrest, for the cause, among othei
There is a very recent case to the same point, The Queen v. Hill, 8 Car. & P. 274. On the trial of an indictment, before Mr. Baron Alderson, the prisoner was charged with uttering a forged bill of exchange, with intent to defraud Samuel Minor. The counsel for the prisoner, in addressing the jury, submitted that, on the evidence, they ought to negative the intent to defraud, because there was evidence, as he contended, that the prisoner intended himself to take up the bill. The learned judge told the jury that the questions for them were, whether the defendant uttered the bill, as a true bill, to Minor, and whether, if he did so, he knew, when he did so, that it was forged; and he instructed them that, if they should find these two facts, then they ought to find, as a necessary
That one shall be presumed to intend the natural consequences of his own acts, was decided in the remarkable case of The King v. Woodburne & Coke, in 1722, referred to in most of the books on crown law, and reported at large in 16 Howell’s State Trials, 54. The indictment was founded on the Coventry act, charging the accused with lying in wait, and attacking Edward Crispe, with -a sharp and heavy instrument called a bill, with intent to maim and disfigure him ; and proof of this intent was necessary to bring the' case within the act. The proof was, that they conspired to murder him; struck him repeated blows, with a hedge bill, in his face and on his head, by which his nose was slit; and left him for dead ; but that he afterwards recovered. The ground taken by Coke was, that the act was done, not with án intent to disfigure, but to murder. But it was answered and resolved, that striking a man in the face with such a weapon, with an ultimate purpose of murdering him, had a direct tendency to maim and disfigure him, and therefore he must have intended that result ; and he was convicted and executed.
I shall now consider the more direct question, whether the instruction to the jury, in the present case, was right and conformable to law. As a preliminary to this inquiry, we must first ask where we are to look for the governing rules and principles of law on this subject. The statute of the Commonwealth provides that murder shall be punished with death; and it prescribes a milder, but still a severe, punishment for manslaughter. But our statutes nowhere define murder or manslaughter. They do not declare what act shall constitute either of the offences, nor what acts of homicide shall be deemed justifiable or excusable. We are then obliged to seek for these rules and principles in the common law. Our Eng
With these views of the sources of inquiry to which it is necessary to resort, I will proceed to the investigation. I will, in the first instance, cite the rule as laid down by Sir Michael Foster, an eminent judge of the highest court of criminal jurisdiction, many years before our revolution, when the people of Massachusetts were under English jurisdiction. He was also a most acute, discriminating and exact writer, whose chapter on the law of homicide has been a work of standard authority on that subject, for a century. Sir William Blackstone says of him, that he was a very great master of the common law. In a case of great public interest, in which a habeas corpus had issued from the court of king’s bench, to obtain the discharge of the Lord Mayor of London, who had been committed to the tower of London, by the house of commons — a case involving critical questions in regard to the liberty of the subject and the power of the commons—Lord Chief Justice De Grey delivered his opinion, in which the other judges concurred, refusing to discharge the party and remanding him to the tower. On that occasion, citing, among others, the opinion of Mr. Justice Foster, in support of his opinion, he speaks of him as one “ who may be truly called the magna charta of liberty of persons, as well as fortunes.” 3 Wils. 203. His work was cited at large by the court, and apparently relied on, as authority for a very important point of law, in the case of Commonwealth v. Knapp, 9 Pick. 517.
The rule is thus stated in Foster’s Crown Law, 255: “ In every charge of murder, the fact of hilling being first proved, all the circumstances of accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of thr evidence produced against him; for the law presumeth
As this was not a judicial opinion, given in the actual administration of justice, it may become necessary to trace it to an earlier source.
Lord Coke, in 3 Inst. 47, having described murder as homicide, “ with malice forethought, either expressed by the party or implied by law,” proceeds, in p. 51, thus to define malice prepensed : “ Malice prepensed is when one compasseth to kill, wound or beat another, and doth it sedato animo. This is said in law to be malice forethought, prepensed, malitia pracogitata.” Here, perhaps, the same remark may be made on the word “ sedato ” which was before made on the word “ deliberate ; ” that it rather denotes an act done in pursuance of a motive, with an intent and formed design, in contradistinction to an act done in an ebullition of anger, in which reason and judgment are for the moment suspended. But whether or not this is the true meaning intended to be expressed by Lord Coke, I think it is made clear, by his definition of implied malice, on the next page. “ First in respect of the manner of the deed. As, if one killeth another without any provocation of the part of him that is slain, the law implieth malice ; whereof you may read in Mackalley’s case,” 9 Co. 67 b.
Mackalley’s case was heard before all the judges, on a special verdict, on an indictment of several persons for the murder of a civil officer. Many points were considered and adjudged, and it is difficult, without making too large an extract, to state the exact point decided on. this subject. But I understand it to be stated by Lord Coke, as decided by all the judges and barons, that “ if one kills another without provocation, and without any malice prepense which can be proved, the law adjudges it murder, and implies malice ; for by the law of God every one ought to be in love and charity with
In the above statement, the case of a killing without provocation is put. But I think it will manifestly appear, from a great variety of cases, that this is equivalent to saying, that it is where no provocation appeareth; where none is proved; on the well known rule, that facts alleged, but not proved, are considered, for all judicial purposes, as not existing. This is established by Legg’s case, Kelyng, 27. One John Legg was indicted for the murder of Robert Wise. “ It was upon the evidence agreed, that if one kill another, and no sudden quarrel appeareth, this is murder, as in Mackalley’s case, 9 Co. 67 b. And it lieth on the party indicted to prove the sudden quarrel.” This was affirmed in the leading case of The King v. Oneby, 2 Ld. Raym. 1485, and 2 Stra. 766. It was argued on a special verdict, before all the judges, in the year 1727, and their unanimous opinion was delivered by Lord Raymond, C. J. The case is too long to cite, but I will state several points decided, bearing upon the present question. On the subject of implied malice, it was held, that “ killing a man, without a provocation, is murder; as if A. meets B. in the street and immediately runs him through with a sword, or knocks out his brains with a hammer or bottle.” One objection to the verdict was, that the homicide was upon a sudden quarrel, and so but manslaughter; whereupon the court stated the rule thus: “ In answer to this objection, I must first take notice, that where a man is killed, the law will not presume that it
There is another view of the subject, which appears to me o lead strongly to the same conclusion. I allude to the cases of special verdicts and judgments thereon. It is a settled rule, and was so laid down in Oneby’s case, to which all the judges agreed, that the court are judges of the malice, and not the jury; and that the court are also judges of the facts found by the jury, whether, if the quarrel was sudden, there was time for passion to cool, or whether it was deliberate or not. It is an equally well settled rule, that if, upon all the facts, found and returned by the jury, in a special verdict, the accused may be not guilty, the court will take nothing by intendment, and are bound to pronounce him not guilty.
If the fact of killing did not necessarily imply malice, and exclude the inference of heat of blood on provocation or m mutual combat, then it would follow that, after the fact of killing is found, if the jury do not negative such fact of provocation or mutual combat, it would still be left equivocal, whether the homicide was upon malice or heat of blood, and the court could not render a judgment as for murder. But it is believed, that in Mawgridge’s case, Kelyng, 119, and in Oneby’s, and many other instances of special verdicts, the jury do not in terms find that the homicide was of malice, nor do they return, negatively, that there was no provocation or sudden quarrel. They return the facts; of course, the facts proved, and no others. If, upon these facts, the court conclude that there was a homicide with malice, judgment is entered for murder; because, whether malicious or not is matter of law. So ii, apon the verdict of the jury, no fact of provocation or sudden quarrel appears, it is because no such fact was proved to their satisfaction. The reason why the court'are bound to render judgment for murder, when the verdict neither finds nor negatives the fact of provocation or sudden quarrel, is, that in the absence of proof of these facts, the law presumes
From this view of the immemorial usage of the courts, upon special verdicts, it appears manifest that the fact of killing is prima facie evidence of malice, and unless overcome by preponderating proof 'the other way, it must be held murder, and judgment go accordingly.
This view of the law of homicide, showing how a judgment must be rendered upon a special verdict which finds, in terms, neither the fact of malice nor the fact of provocation or sudden quarrel, (including, of course, the nature and incidents of such provocation or quarrel,) in extenuating the homicide, leads to the consideration of another part of the direction to the jury, excepted to by this motion. This direction was, that if, in their opinion, the proof preponderated against the conclusion that there was mutual combat, although they
I am aware that Lord Holt, in his elaborate opinion, in Mawgridge’s case, Kelyng, 119, in some introductory remarks, states the ancient law in regard to murder and homicide, in the time of the Danes, and afterwards of the Normans, in which certain arbitrary presumptions were, by express enactment, to be raised. Homicide was not then considered murder, unless it was secret. Among other extraordinary provisions, it is stated that, before the statute of Marlbridge, as the law stood or was interpreted, if a man was found to be
And in the opinion of the judges, in Oneby’s case, in 1727, 2 Ld. Raym. 1487, they say, “ without entering into a nice examination of the several definitions or descriptions of murder, as they are found in the old law books of Bracton, Britton and Fleta, where the wickedness of the act is aggravated by the
An instance of arbitrary presumption, created by positive law, by an English statute, designed to prevent the growing evil of infanticide, in certain cases enacted that, if a woman should conceal the birth of her bastard child, and afterwards the child should be found dead, it should be presumed that the child was born alive, and that she killed it. This statute was afterwards repealed.
But if we are right in tracing the principle and the true ground of the rule, which seems to be so well established by authority, it is not like an artificial presumption, established by positive law, on considerations of policy; nor like an arbitrary edict of an invading sovereign, jealous of his newly conquered and still exasperated subjects; but an instance of an inference, drawn by correct reasoning, from facts proved, which must stand until controlled or rebutted by some other fact proved. That such is the principle and foundation of this rule, I have offered some standard authorities to prove; and it remains only to show how uniformly this rule has been repeated, and enforced and acted upon, both by judges, and text writers of established authority.
I have already cited the leading passage in Foster’s Crown Law. But the principle is recognized, rather than formally stated, in various passages of that work. “ I have already premised, that whoever would shelter himself under the plea of provocation must prove his case to the satisfaction of his jury. The presumption of law is against him, till that presumption is repelled by contrary evidence.” p. 290. And again, in p. 313: “ for all voluntary felonious homicide without a provocation is undoubtedly murder.”
Lord Hale says, “ when one voluntarily kills another without any provocation, it is murder; for the law presumes it to be malicious, and that he is hostis humani generis.” 1 Hale P. C. 455. In 1 Hawk. c. 31, § 32, it is laid down, that “ wherever it appears that a man killed another, it shall be
In The Queen v. Kirkham, 8 Car. & P. 116, 117, Coleridge, J. says, “ as soon as it is ascertained that one individual, in the possession of his reason, has wilfully taken away the life of another, the law’s first presumption is, that the party is guilty of murder.” “ The law requires from him and will allow him to show that there were some mitigating circumstances, which alter the presumed character of the act.”
I will cite only one other recent English case, to show how uniformly this rule of law is applied there, in like cases. In
This rule has been adopted and sanctioned,. almost in the same terms, in this Commonwealth, and in several of the States. In Commonwealth v. Phillips, in this county, in the year 1817, Parker, C. J. thus laid down the law: “ When a homicide is committed, the law implies malice. It is incumbent on the person who committed it to prove the absence of malice, by evidence produced in his defence; or the proof may arise out of the evidence on the part of the government ” Pamphlet report of Phillips’s trial, p. 45.
So in New York; The People v. McLeod, 1 Hill, 436; and in New Jersey. The State v. Zellers, 2 Halst. 243. So in Pennsylvania, by the common law. Pennsylvania v. Honeyman, Bell, McFall and Lewis, Addison, 148, 161, 257, 282. Since the statute of that State, passed in 1794, the burden of proof is on the government; and unless the circumstances of malice are proved, it is murder only of the second degree. 1 Whart. Dig. (4th ed.) 327.
1 have thus endeavored to establish the proposition, and it seems to be most abundantly proved, that when the fact of voluntary homicide is shown, and this not accompanied with any fact of excuse or extenuation, malice is inferred from the act; that this is a fact which may be controlled by proof; but the proof of it lies on the defendant; and if not so proved, it cannot be taken into judicial consideration. This is expressed in a variety of forms, a variety so great as to preclude the supposition that it depends upon a form of words or mode of expression transmitted by one writer or jurist to anothei cut
In Legg’s case, the words are, “it lieth upon the party indicted to prove the sudden quarrel.” So in Oneby’s case, “ where a man is killed, the law will not presume that it was upon a sudden quarrel, unless it is proved so to be.” Foster says, the defendant “ must prove his case to the satisfaction of his jury. The presumption of law is against him, till it is repelled by contrary evidence.” Blackstone says, “it is incumbent on the prisoner to make out,” &c. East says, the circumstances “are to be satisfactorily proved by the prisoner.” Starkie says, the defendant “must prove his case.” Coleridge, J. says, “the law requires from him to show,” &c. Tindal, C. J. says, “ it behoves him to show,” &c.
These various expressions we consider as meaning substantially the same thing. Now, whether it be regarded as a presumption, to be rebutted by proof, or a change of the burden of proof, or an inference of fact, to be controlled or disproved by evidence, as applied to this subject, it makes little difference. It is evidence of malicious homicide, which must have its effect, until, the malice is disproved by satisfactory proof of circumstances of extenuation. It is hardly necessary to cite authorities to the very familiar principle, that when a fact is to be proved, it must be by evidence sufficient to lead a jury to believe it to be true; and that, for this purpose, it must outweigh or overbalance the evidence which it is brought to control. I will simply allude to two recent cases of great interest, in this court. In Commonwealth v. J. F. Knapp, 9 Pick. 496, the prisoner was charged with aiding and' abetting in the murder of Mr. White. The proof tended to show that the prisoner conspired with the perpetrator of the murder, and was in a situation to afford encouragement and assistance, though standing at some distance from the scene. The court instructed the jury, that if the prisoner was one of the conspirators, and in a situation to afford some assistance, it would follow, as a legal presumption, that he was there to carry into
In Commonwealth v. J. J. Knapp, 10 Pick. 484, the principle is laid down more explicitly. The prisoner was charged as accessory before the fact to the same murder; and it became necessary to prove the conviction of the principal. The record was offered for that purpose and objected to. The court admitted it as prima facie evidence, saying, “ it may be rebutted by showing that there was no murder, or that Francis was not in a situation where he could take a part as a principal. The prisoner has the burden of proof. He must show the jury that Francis ought not to have been convicted. He is not to make the propriety of the conviction questionable merely; he must prove it to have been clearly wrong.”
These' cases, it is believed, were deliberately tried, and the rules of law laid down in them were much considered ; and the passages I have cited are directly in point. In both cases, it was held, that where a presumption against the accused was established, or a prima facie case made, it must stand as a fact proved, till overthrown by proof of the contrary. In the last case, proof of murder committed, and the prior conviction of the principal, were essential averments to be proved; but the record of the conviction was held prima facie evidence of that murder, unless proved by the defendant to be wrong. Proof making it questionable Would be insufficient.
This is precisély conformable to the direction, in the case at bar, that when the state of the proof is such, that it becomes necessary for the accused to take on himself the proof of a fact, it will not be sufficient to make it doubtful or questionable ; it must preponderate.
When it is said that the proof lies on the accused, it is not to be understood that the evidence must be adduced or offered by him; he may avail himself of all the evidence, on both sides, whether produced by himself, or coming from the other side on direct or cross examination. The true meaning is, that the accused takes the responsibility of that fact, and if the
If it be still insisted, that conformably to this course of reasoning, a person on trial may be convicted of the higher offence when the jury have doubts whether he ought to be so convicted, we think the answer is obvious. The crime, the corpus delicti, is to be proved beyond reasonable doubt; otherwise the accused is entitled to an acquittal. The jury must be so instructed, and were so instructed in the present case. If the homicide was proved beyond reasonable doubt, and no fact of extenuation came out with the proof of the homicide, (and we are now so to presume,) then the offence of which the party was convicted was proved beyond reasonable doubt, and the doubt arises only in regard to a fact which was alleged by the accused in extenuation, but not proved. This would, perhaps, appear more clear, in a case where there is no medium between acquittal and conviction, as there is in homicide, by a verdict of manslaughter. Suppose a party indicted for manslaughter, and that the defence should be excusable self-defence. Suppose the fact of killing should be clearly proved, but an attempt to prove a previous violent attack upon him by the deceased should fail, although the evidence might tend to raise some doubt whether there was not such previous attack. The conviction, in such case, must rest on proof establishing the corpus delicti beyond reasonable doubt, although the whole evidence would raise a doubt, whether there had not been such previous attack. The proof establishing the necessity for such taking of life, in self-defence, must be satisfactorily made out. Raising a doubt would be insufficient.
So in J. J. Knapp’s case, the jury might have entertained gieat doubts of the correctness of the conviction of the principal ; but being established by proof, sufficient until met by proof sufficient to prove it incorrect, the jury were rightly directed to convict him, because such proof was not given.
The other branch of the direction given to the jury, that in case of the proof being equal, the presumption of innocence would turn the rule in favor of the prisoner, was favorable to
On the principal question, upon the fullest consideration we have been able to give it, on this revision, a majority of the court are of opinion that the direction was right, and that the motion for a new trial must be overruled.
I regret exceedingly that the court have not been able unanimously to concur in opinion, on the important question raiséd by the motion of the prisoner’s counsel. In the administration of justice, it is of gréat importance that the law and the rules of evidence should not only be founded upon just and reasonable principles, but that they also should be clearly settled. Any uncertainty of the law is a great evil, and may be productive of great injustice. This is true in all cases, civil or criminal, but more especially in capital cases, when the life of a fellow-being may depend on a principle of law or a rule of evidence.
Impressed with these considerations, and with the vital importance of the question in this case, I have examined the authorities on which it depends with great care and attention; and notwithstanding my great deference to the opinions of my learned brethren, in doubtful and difficult que-.-tions, I cannot conscientiously concur in the decision now pronounced by the Chief Justice. I am unable, after the most anxious consideration of the question, to overcome the strong conviction of my own mind, that the instructions excepted to are not maintainable upon any sound principle of law, or upon any binding authority. I feel therefore in duty bound to express my own opinion, and to refer briefly to the authorities and principles of law upon which it is founded.
In my opinion, the question depends entirely upon the rule of law as to_ the burden of proof. If the burden of proof, throughout the trial, was on the Commonwealth, the instructions to the jury were clearly incorrect; if, on the contrary, it was on the prisoner, after the proof of the homicide as charged, he has no ground of exception; as the instructions were more favorable to him than the law requires. That the
This argument cannot be maintained, unless the law of .homicide, as to the burden of proof, is an exception to the well established rule of law in all other cases. Even in a civil suit, the plaintiff must prove all the essential allegations in his writ, beyond a reasonable doubt, or the defendant is entitled to a verdict. , This just rule is of great importance in the trials of civil actions, where the evidence is doubtful; it is still more important in criminal trials, and most of all in capital trials. The prima facie evidence of a case never changes the burden of proof, unless the defence is founded on the admission of the facts proved by such evidence. And in criminal cases, the burden of proof never shifts, so long as the defendant grounds his defence on the denial of any essential allegation in the indictment. For instance; if the prisoner, in the present casé, had grounded his defence on the proof of an alibi, and the jury had doubted whether to believe the witnesses testifying to his guilt, or the witnesses testifying to an alibi, undoubtedly the jury would have been bound to return a verdict of acquittal, notwithstanding the government, in the first instance, had made out a prima facie case by express evidence. And how can the principle vary when a prima facie case is made out partly by presumption ? If, on the whole evidence, the jury had a reasonable doubt of the prisoner’s guilt as charged, they could not be. justified in convicting him.
In the case of Commonwealth v. Dana, 2 Met. 329, the defendant was indicted for having in his possession lottery tick
In the case of Coffee v. The State, 3 Yerg. 283, it was decided, that malice being a necessary ingredient in constituting the crime of murder, if the jury had a reasonable doubt of the malicious intent with which the act was done, that doubt must weigh in favor of the prisoner; and unless removed by the government, they must acquit him. “ I am of opinion,” says Green, J. “ that the judge should have told the jury that if, upon the whole circumstances, of the case, they were satisfied of his [the prisoner’s] guilt, they ought to find him guilty; but if their minds, taking all the evidence together, could not come to any satisfactory conclusion as to whether the act amounted to murder or manslaughter, they ought to find him guilty of manslaughter only.”
These principles and authorities are wholly irreconcilable with the presumption of malice on which the counsel for the Commonwealth relies. No malice can be inferred from the mere act of killing. Such a presumption, therefore, is arbitrary and unfounded. Many homicides are committed in self-defence, some by accident, and many more upon a sudden provocation, or in mutual combat. How then can it be maintained, upon any just or reasonable principle, that every homicide implies malice, unless the contrary be proved beyond a reasonable doubt ? Nor is such a presumption supported, as it seems to me, by any binding authority. It had its origin in
Such is the origin of the presumption relied on in support
On principle, this appears to me exceedingly clear; and I think there is no binding authority to the contrary. The dicta of judges, referred to in 'the digests, were extrajudicial. They are to be found in cases decided on special verdicts, where the question of malice depended upon the facts and circumstances found by the jury, from which it might or might not be inferred. Such was the decision in The King v. Oneby, 2 Ld. Raym. 1485, and 2 Stra. 766. There was no question as to the burden of proof in that case; for the question of malice was expressly decided on the facts found by the jury. The court say, that “ upon the trial of an indictment for murder, the judge directs the jury thus: 'If you believe such and such witnesses, who have sworn such and such facts, the killing the deceased was with malice prepense express, or it was with malice implied ; and then you ought to find the prisoner guilty of murder ; but if you do not believe those witnesses, then you ought to find him guilty of manslaughter only: and so, according to the nature of the case, if you believe such and such facts, the act was deliberate or not deliberate; and then you ought to find so and so.’ And the jury may, if they think proper, give a general verdict, either that the prisoner is guilty of murder, or of manslaughter. But if they decline giving a general verdict, and will
If then there is any ground for the presumption in question in cases of secret homicides, there is none whatever in cases where there is evidence as to the facts and circumstances accompanying the act of killing. In all such cases, the jury are to decide upon the question of malice, according to the facts and circumstances proved. Malice is implied, says Sir Michael Foster, when the fact of killing “ hath been attended with such circumstances as carry in them the
On the other hand, it is true that Sir Michael Foster, an eminent judge certainly, and a learned writer on criminal law, does lay down, in his discourse on homicide, the doctrine of presumption as now contended for on behalf of the Commonwealth. But the only case cited in support of the doctrine is The King v. Oneby, which was decided on a special verdict upon the facts and circumstances accompanying the killing, and not on any presumption of malice from the act itself. This opinion of Sir Michael Foster, which has principally
Taking into consideration all these authorities and dicta, and the statements of the law of homicide by the writers on criminal law, I am of opinion that the following conclusions are maintained on sound principles of law and manifest justice : 1. That when the facts and circumstances accompanying a homicide are given in evidence, the question whether the crime is murder or manslaughter is to be decided upon the evidence, and not upon any presumption from the mere act
I am therefore constrained to say, with great deference to the opinion of my learned brethren, that, in my judgment, the prisoner is entitled to a new trial.