Downing v. State

70 P. 833 | Wyo. | 1902

Lead Opinion

Knight, Justice.

This case having been before this court at the last term thereof (69 Pac., 264; 10 Wyo., 373) upon a motion to dismiss this appeal, for the reason that the bill of exceptions does not contain the testimony adduced on the trial in said case, or any part thereof, and is, therefore, insufficient upon which to predicate error in this court, and in the ruling upon said motion and the reasons given for denying the same. Much is said that is not necessary to now repeat, and that makes reference to that opinion necessary to obtain the conditions and restrictions under which this case is now considered in apparent violation of the rules of this court, as claimed by defendant in error at that time.

A statement of the facts 'gathered from those made by counsel and the charge of court which in this instance must be presumed to have been based upon evidence presented, and upon exceptions upon which errors were based would be in substance as follows: Within thirty days prior to the 30th day of August, 1893, Jens Hanson, as Sheriff of Carbón County, Wyoming, had lawfully levied, by virtue of an execution, upon the personal goods, chattels and property of one Charles F. Perkins, judgment debtor, and that after such levy said judgment debtor entered into an agreement with said sheriff to safely keep said goods and chattels subject to the levy of said execution, as the agent of the said sheriff, for the period of thirty days following, and that before the thirty days had expired the said Jens Hanson, sheriff, was proceeding with the sale of said property under said levy, and that the plaintiff in error, knowing of the levy as aforesaid, in the night time of August 29th and 30th, 1893, -was assisting in removing the goods, chat-, tels and property so levied upon without the consent of said sheriff and out of the possession of said sheriff; that while so engaged the plaintiff in error was discovered by said sheriff and the deceased, Charles Scott, who was at the time a deputy sheriff, and that, in the attempt to arrest the plaintiff in error by the sheriff and the deceased as his deputy, plaintiff in error shot and killed the said deputy sheriff, Charles Scott. As the court instructed the jury as,to flight, it is reasonable to presume that evidence of that fact would account for the arraignment of the plaintiff in error more ■than six years later, upon October 16th, 1899, upon the information herein, charging him with murder in the first degree, filed in said court October 18th, 1893, upon which he was tried and convicted of murder in the second degree and sentenced to the penitentiary for the term of twenty-five years.

The claim made in plaintiff in error’s brief, tyhich, in view of the authorities cited, we believe entitled him to a review of the instructions given in the court below by said court, is as follows: “The instructions of the court deal at unusual length with the definition and scope of the several divisions of criminal homicide and abound in explanations of the meaning of the terms ‘premeditation,’ ‘malice,’ ‘passion,’ ‘willful,’ ‘provocation,’ ‘adequate cause,’ etc. It becomes of the utmost importance, therefore, that these instructions should be clear, consistent, correct interpretations of the law. We submit that they do not possess these characteristics.”

This court in Ross v. State, 8 Wyo., 351, discussed at length a claim made that erroneous instructions as to murder in the first degree would not entitle a defendant to a new trial when found guilty of murder in the second degree .and made use of the following language: “In a case like the present, where the jury did not follow the misdirection, but disregarded it, and returned a verdict for the lower degree, we think that it affirmatively appears that the defendant was not prejudiced. There can be no possible propriety in remanding a case for correct instructions upon a crime of which the defendant has been acquitted, unless the verdict which was returned was in some way affected by the misdirection, and there is no suggestion that it was in this case.”

This plaintiff in error having been found guilty of murder in the second degree, only so much of the instructions of court as could not have been based upon evidence that described that offense and might have influenced the jury in arriving at their verdict will be considered upon the claim made that they were erroneous.

Counsel for plaintiff in error in the argument based upon his brief points out eighteen errors in the instructions; of these, Nos. I, 2 and 3 relate to instruction No. 2. And the first claimed error to this instruction is in reference to premeditated malice, an element necessary to the crime of murder in the first degree, of which the defendant was not found guilty, and which we pass for reasons hereinbefore stated. The second claimed error to this instruction is to the following language therein contained: “Malice means ill-will, hatred, ill-natured willfulness, a willful intention to do an unlawful act, a willful act done intentionally without just cause or excuse. It also denotes a state of mind from which acts are done regardless of the rights of others.” The claim is made that in using the above language the court said: “Malice means a willful act done intentionally without just cause or excuse.”

There is sufficient merit in the claim as made to cause us to admit that such a definition of malice would be bad in law, if standing alone, and might have affected the verdict as rendered, but an inspection of the other definitions of malice given by the court leads us to the conclusion that the word “willful” was not intended, but that “wrongful” was in some unaccountable way displaced by it.

Instruction No. 6, given by the court, is in the following language: “The court instructs the jury that malice within the meaning of the law includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive; that the term malice has in law a two-fold significance. There is what is known as malice in fact and malice in law, or implied malice, in the legal sense. Malice signifies a wrongful act intentionally done without justification or legal excuse. Express malice is that deliberate intention unlawfully of taking away the life of a fellow creature which is manifested by external circumstances, capable of proof. Malice may be found when no considerable provocation appears and when all the circumstances of the assault show an abandoned and malignant heart.”

And again in instruction No. 7 the court says: “Malice is not confined to ill-will toward an individual, but it is intended to denote an action flowing from any wicked and corrupt motive. A thing done with a wicked mind and attended with such circumstances as plainly indicate a heart regardless of social duty and fully bent on mischief indicates malice within the meaning of the law, hence malice may be found from any deliberate and cool act against another, however sudden, which shows an abandoned and malignant heart.”

After having given these definitions of malice, the court, at the request of the plaintiff in error, said to the jury, among other things: “Murder in the second degree is. where the act is committed deliberately and in cold blood, and not suddenly and in the heat of passion or upon provocation. In the case of murder in the second degree, while it is not necessary that the act should have been previously planned or deliberated upon, still it must be a cold blooded and malicious act. If the circumstances do not show it to be such, or if there exists in the minds of the jury any reasonable doubt that such was the character of the killing, there cannot be any verdict of murder in any degree.”

The third claimed error is also directed to the same instruction and makes the court say: “Malice denotes a state of mind from which acts are done regardless of the rights of others.” And the claim is made that said language has a tendency to mislead the jury by minimizing the elements of the higher degrees of crime, thereby raising excusable homicides, and those of a lower degree to those of higher degree, through failing to correctly define malice and premeditation.

Claimed errors Nos. 4, 5 and 6 are directed to instruction No. 3, and we fail to find merit in either of said claims. Instruction numbered 3, after giving the statutory definition of murder in the second degree, continues: “This degree of murder is like murder in.the first degree, except that to constitute murder in the second degree there must be no deliberation. If there be deliberation, it would be murder in the first degree.

“If, therefore, you find from the evidence, beyond a reasonable doubt, that the defendant, George Downing, killed the deceased, Charles Scott, purposely and maliciously, but without premeditation, and you further find that he killed the deceased without such provocation as was apparently sufficient to create in him an irresistible passion, and such killing was not in lawful self-defense, you will find the defendant guilty of murder in the second degree. If the defendant- intentionally killed the deceased with a deadly weapon, without such provocation as was apparently sufficient to excite in him an irresistible passion, and such killing was not in lawful self-defense, then such killing, if malicious, is murder, and if such killing was deliberate and premeditated, it was murder in the first degree.” The objections to this instruction is answered by the language used by this court in Ross v. State, supra: “It is impossible to state in each instruction all the law applicable to the case.It is not only impossible to rehearse in each instruction every principle of law involved, but it would only create confusion and obscurity to attempt it.”

The other errors assigned cannot be considered, because of the condition of the record, as explained, and authorities cited in the ruling upon the motion to dismiss, supra. The recital in the bill of exceptions of the fact that the instructions given were applicable to the evidence makes no important addition to the record. (90 Ind., 424.) We are unable to detect any reversible error by an inspection of the record before us, and the judgment of the District Court is affirmed. Affirmed.

Potter, C. J., and Corn, J., concur.

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Rehearing

ON PETITION EOR REHEARING.

Knight, Justice.

Plaintiff in error has filed a petition for rehearing in this cause. No new point is suggested, but a reargument is submitted by brief of the propositions hereinbefore considered and of other.propositions urged, but not considered, by reason of the defective conditions of the record, as fully set out. A full examination and consideration of all matters now urged having been had, in the face of the claim urged that this court, by its rules and former decisions, were not bound to review a record so imperfect, we are of the opinion that the rights of plaintiff in error were fully protected and we are confirmed in our opinion as announced. A rehearing is denied.

Corn, C. J., and Potter, J., concur.