63 Tenn. 331 | Tenn. | 1874
delivered the opinion of the Court.
The prisoner was indicted for the murder of Geo. Gray, his father, was convicted of murder in the 2nd degree, and sentenced to ten years imprisonment in the Penitentiary, and has appealed from the judgment of the Court.
Several exceptions are taken to the charge of the
“ It is a general rule of law, that all homicide is. presumed to be malicious, and amounting to murder, at least in the second degree, until the contrary is made to appear, from circumstances of alleviation, excuse or justification, and it is incumbent on the de-fendent to make out by proof, such circumstances to the satisfaction of the jury, unless they arise out of the evidence by the State.”
This passage, taken as a whole, and especially in connection with the balance of the charge, which is full and explicit upon every point, we think is not erroneous. The general rule stated by the Judge, that all homicide is presumed to be malicious, in the absence of circumstances rebutting the presumption, has been often announced by this Court. We have, in a recent case, expressed the opinion that, while this presumption would be important in a case where nothing but the fact of the unlawful homicide appears; that no great importance should be attached to it, in a case where the facts and circumstances attending the homicide are in proof, but the jury should rather be left to determine this question from the entire case.
It will be seen, from the above extract^ .that his Honor qualifies the general proposition by leaving it to the jury to say whether the malice is rebutted by the circumstances arising out of the proof either for the State or defendant. Practically, this is substantially the same rule we have approved, and particu
Next, in defining murder in he second degree his Honor said the proof must show that the killing was unlawful and with malice, but that it was not necessary that it be done with the cool, deliberate purpose requisite to constitute murder in the first degree.“Hence,” he continues, “although the proof might show that the defendant did design or intend to kill, still,. if it appeared that such design was formed upon a sudden impulse of passion, disconnected with any previously formed design, although it was executed wilfully and maliciously, it would not amount to more than murder in the second degree.”
The argument is, that killing upon a sudden impulse of passion is manslaughter, and not murder in the second degree. It is observed, however, that his Honor says in this same connection, that the killing must be malicious to constitute murder in the second degree.
To reduce the offence to manslaughter, the killing' must not only be upon a sudden impulse of passion, but this must be produced by adequate provocation. This is fully explained in a subsequent portion of the charge. The charge is, therefore, not erroneous in this respect, although the expression “ sudden impulse of passion,” used in defining murder in the second degree, unless properly guarded, might sometimes be misunderstood..
Upon the testimony set out in the bill of exceptions, we are of opinion that the jury were warranted in finding the verdict they did. That the deceased was billed by a pistol shot fired by the defendant, admits of no doubt. As to the circumstances attending the killing, there is conflicting testimony.
The facts which would- tend to throw light upon the transaction are not so fully set forth in the bill of exceptions, as it seems to us they might have been. There is much obscurity in regard to circumstances under which the killing occurred. The theory of the, defendant is, that he was at home at his father’s house
We are forced to say, that, although this theory is supported by the testimony of the defendant’s mother and brothers and sisters, the only parties present who were examined; that it is in the highest degree improbable, besides being in conflict with the facts and circumstances. The statements of the defendant, himself, and of his mother and brothers, was made shortly after the occurrence.
It is scarcely possible that the deceased was not, at the time, known to his own family, or could not have made himself known in time to have prevented the catas-
Let the judgment be affii'med.