36 Wis. 226 | Wis. | 1874
The plaintiff in error was indicted fqr murder. On a former trial, the jury found him guilty generally, without specifying the degree of murder. On that ground, the judgment was reversed. Hogan v. State, 30 Wis., 428.
On his second trial, he was found guilty of murder in the second degree, and sentenced to the penitentiary for life. From that conviction he prosecutes the present writ of error.
His case was very ably presented by his counsel, who presented three grounds for reversal of the judgment.
I. It appears by the record that the verdict was rendered March 7, 1874. On the same day, the plaintiff in error made, and the court below made an order overruling, a written motion for a new trial, on the grounds that the court below misdirected the jury, that the verdict was not supported by evidence, and that it was against law and evidence. March 9, judgment was entered on the verdict, the plaintiff in error sentenced, and a certificate thereof delivered to the sheriff. March 11, the plaintiff in error filed another written motion for a new trial, on the ground that one of the jurors had not resided in the state for a year, supported by the juror’s affidavit of the fact, and his own affidavit that he and his counsel did not know the fact until after the verdict; both affidavits made on the same day. The record discloses no action taken or order made by the court below on this second motion.
It is true that the bill of exceptions states that the second motion was made on the (blank) day of March before judgment and sentence, and that it was denied by the court; and that afterwards, on the (blank) day of March, judgment was rendered. A bill of exceptions should never be signed with a blank.
i It is certain that, at common law, motions for new trial must be made after verdict and before judgment. It would be no greater absurdity to move for a new trial, at common law, before verdict, than after judgment. And our only doubt on this point was suggested by sec. 6, ch. 180, R. S. This provides that the circuit court at the term of trial, and the circuit or supreme courts within a year after, may grant new trials to defendants in criminal cases, for proper cause.
In cases of conviction for crime, judgment with us usually
We find that the section was adopted in the revision of 1839, was continued in the revision of 1849, and still preserved in the revision of 1858. We find that it was first taken, with slight verbal change, from Massachusetts, in which state it appears to have been adopted as early as 1832. In Massachusetts, from that year down, it is immediately followed by another section providing for the review of criminal cases by the supreme court, on exceptions, after verdict of guilty and before judgment. And we find our section immediately followed by a similar section in all the revisions of 1839,1849 and 1858.
It appears to be a more common practice in Massachusetts than it has been with us, to review criminal cases in this manner. And the interpretation of the provision, in that, state, appears to be, that the motion must still be made between verdict and judgment; that it must be made in the court in which the record is; if exceptions have not been certified up to the appellate court, then in the court in which the case was tried; if exceptions are in the appellate court, then in that court. Commonwealth v. Peck, 1 Met., 428. And that manifestly appears to be the true construction of the section.
We have, therefore, no choice but to hold that the plaintiff in-
II. On the trial below, the homicide was not denied, nor justified, nor excused. The only question was the degree of guilt of the plaintiff in error. He gave uncontradicted evidence of good character. He does not appear to have asked any specific instruction from the court below on the effect or bearing of such evidence. If the court below failed to give full instruction on the point, it was perhaps his duty to have asked for it. But we cannot reverse the judgment upon mere criticisms upon the charge, unless we find that it misstated the rule in some substantial way, calculated to mislead the jury on the questions submitted to them.
The learned judge who presided at the trial instructed the jury that the evidence was competent, but that it could not avail against facts positively proven. So far, the charge appears to us entirely correct. But he further told the jury that the effect of such evidence is, that, in cases of merely circumstantial evidence, where the evidence is nearly balanced, it might be sufficient to acquit a defendant. This is doubtless an
Conceding some incompleteness and inaccuracy in what was said to the jury, it would be still a question how far it can be held for error. The homicide being admitted, in such a case, evidence of good character could go only to the intent of the plaintiff in error. And he must have had the full benefit of.it,' for the jury acquitted him of the intent to kill. They found that he killed the deceased, without design to kill him, by an imminently dangerous act, evincing a depraved mind, regardless of human life. These qualities of an act, done in plain view
This point was pressed upon us with much ability. And it was suggested that the evidence of good character might have tended to reduce the crime to one of the degrees of manslaughter, by raising a presumption that the homicide was committed in the heat of passion. But heat of passion, in such a case, is a fact to be proved, like any other, not to be presumed from mere good character. Evidence of irritable character might have some bearing on it, but not evidence of good character. And the office of good character, in criminal cases, is not to raise presumptions, but to rebut them; not to prove anything, but to solve doubts of proof. And here, in any view, there was no doubt to solve, for there was no evidence of heat of passion given.
It appears to us to be quite evident that the jury was not misled to the disadvantage of the plaintiff in error by any inaccuracy there may have been in the language of the charge; that he had all the advantage he could pi’operly claim from his evidence of go.od character; and that the exception to the charge, if well founded in law, is wholly immaterial.
III. This brings us to the real question in this case, which is not free from much difficulty, and which has received from us long and careful consideration: the construction of our statutory definition of murder in the second degree, as applied by the court below to the crime of the plaintiff in error.
The plaintiff in error, who is an elderly man, and the deceased, were brothers, living on one piece of land. There had been, for some considerable time, a controversy between them,
We cannot doubt that, on this evidence, the jury would have been warranted in finding the plaintiff in error guilty of murder in the first degree, and that the court could not properly have disturbed their finding. But their verdict was of
At common law, there were two crimes of homicide only, murder and manslaughter Murder was the unlawful killing of a human being, with malice aforethought, express or implied ; manslaughter was the unlawful killing, without malice, express or implied. But homicide was sometimes murder by malice imputed by law to the conditions under which it was committed.
The terms, express or implied, as applied to malice aforethought, led to some confusion in the books. Express malice was sometimes considered as malice positively appearing; sometimes as actual malice, whether positively or inferentially appearing. Implied malice was sometimes considered as malice, not positively, but inferentially appearing; sometimes as malice not at all appearing, but imputed by law: constructive malice. This was not only confusion of terms, but led to confusion of guilt, leaving the distinction between murder and manslaughter sometimes doubtful. This is more elaborately and accurately stated in the learned brief of Mr. Hill in 10 N. Y., 123. Our statement is sufficiently accurate to show the inducement to the modern policy of statutory definitions of crimes of homicide.
Pennsylvania, we believe, first undertook this. As early as 1794, that state, in substance, defined murder in the first degree, to be killing by any willful, deliberate and premeditated means, or in the commission of certain felonies; and declared all other murder to be murder in the second degree.
Whatever confusion there may sometimes have been in the terms or application of the common law, it was flexible in practice, and generally of easy application to the multiform
The revised statutes of New York, of 1830, attempted the more difficult and dangerous work of defining all crimes of homicide by fixed .statutory conditions.
The learned and eminent revisers reported four several definitions of murder. These declared homicide to be murder,
1. When perpetrated from a premeditated design to effect the death of the person killed,’ or of any human being ;
2. When perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual;
3. When perpetrated without any design to effect death, by any person engaged in the perpetration of any felony punishable by imprisonment in a state prison, or engaged in an attempt to to perpetrate such felony;
4. When perpetrated from a premeditated design to do some great bodily injury, without a design to effect death.
These definitions were designed by the revisers to include all statutory murder; and, with certain definitions of man
But the legislature, while adopting the rest of the section in nearly the words repeated, rejected the fourth subdivision of murder; leaving the definition of the crime, as understood and intended by the revisers, defective ; leaving unprovided for, in their view, a form of homicide which was murder at common law. In the view of the revisers, that particular form of murder was left undefined by the statute; in the view of the legislature, it is to be presumed, that form of murder was covered by some other of the definitions of murder or manslaughter. This seems a severe comment on the attempted codification, which left a casus omissus, afterwards encountered by the court of appeals in Darry v. People, 10 N. Y., 120. And so we find the definitions of New York almost confessedly defective in reducing the law of homicide to a code.
From this statute of New York, ours was taken in 1849. But it was taken with so vital a difference, that it cannot be properly said that it was copied.
In New York the four definitions reported by the revisers, and the three adopted by the legislature, were different conditions of one crime, without degree, subject to one punishment.
Here, their first definition was made murder in the first degree, punishable by death; their second definition, murder in the second degree, punishable by imprisonment for life; and their third definition, murder in the third degree, punishable by imprisonment for a term of years.
The second definition of the New York statute was not-interpreted by the courts of that state, when our statute was adopted. This court is therefore free to put its own construction on it, as it did on another section, differing from some of
In Dairy v. People, supra, the bar and bench went into a very elaborate, critical and somewhat subtle discussion of the intent and scope of their second definition of murder ; and the court adopted a construction which was very strongly urged on us in this case, but with which we are not able wholly to agree. And it may be remarked, in passing, that in that case the court was not unanimous, and that in the opinions of the majority, there are material differences of reasoning.
That was a case of homicide, committed by cruel and protracted assault or series of assaults, which, in the absence of a design to kill, seems to us to have belonged to the class of cases provided for by the rejected fourth definition of murder. The court held it not to be within their second subdivision, corresponding with our murder in the second degree.
Eor the reasons already assigned, and because it would involve a long discussion not necessary to our decision, we shall not attempt any review of the reasoning of the court in that ease. So far as we are compelled to dissent from it, the reasons for our dissent will sufficiently appear in the statement of our own views.
They refer, for the source of their second definition, to this passage in Foster, 256: “When the law maketh use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow, restrained sense to which the modern use of the word malice is apt to lead one, a 'principle of malevolence to particulars ; for the law by the term malice in this instance meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit.”
The New York court of appeals confined their second subdivision exclusively to cases of homicide from a general malice or depraved inclination to mischief, fall where it may. This was murder at common law. As if one willfully ride an unruly horse into a crowd, or throw a stone or fire a gun into a crowded street, or the like, with intent to do hurt, the probable danger being great and apparent, although without intent to kill, and one is killed by it. “ It is murder on account of the previous malice, though not intended against any particular individual; for it is no excuse that the party was bent on mischief generally. But if the act was done incautiously, without any such intent, which must be collected from the circumstances, it is only manslaughter.” 1 East’s P. C., 231, sec. 18.
We quite agree with the New York court that the language of their second definition, our murder in the second degree, includes this class of cases. But we are unable to agree with them that it includes only cases of that precise character — only
In the language of the New York revisers, it seems very plain that circumstances may induce the presumption of a design to kill, or may be of such a nature as would ordinarily lead to taking life, in the one case as in the other ; and that the language of Foster to which they refer, though it includes cases of general malice, does not exclude cases of particular malice. We see no reason for separating the two kindred crimes, so exactly alike in guilt, so exactly alike in all details except one, and that one detail resting in accident, not at all affecting legal or moral guilt. Indeed, they are essentially one crime, committed under different circumstances. We think that the manifest inclusion of the one, so far from indicating an exclusion of the other, imports a design to include both, unless the language used necessarily excludes one or the other. It is not to be presumed that the legislature intended the one to be murder and the other manslaughter. And if such were the effect of the language used, we should be inclined to consider it an accidental effect, against the policy of the statute; a mere consequence of an unfortunate use of words. The question, therefore, turns on the language used. And, adopting the view of Selden, J., in Darry v. People, that the new phraseology of the statute is to be construed by its own import, and not in the light of the old phrases of the common law, we will consider the precise terms used, so as to ascertain whether, fairly construed as a penal statute, it includes what we think it was meant to include, or whether it is such as to exclude it arbitrarily.
We shall not stop to inquire whether the definitions of murder and manslaughter are so distinct as to exclude from each whatever grade of homicide is provided for in another. We regret to say that we fear they are not. A very careful consideration of them has left a painful impression on our minds that they are, in some instances, somewhat inaccurate and ill
As penal statutes these definitions of homicide are to be construed strictly, for the benefit.of those accused under them. But this strict rule of construction is not to be taken in too literal and critical a sense. The statute is not to be extended beyond the plain meaning of its words. But the intention is not to be defeated by overstrict construction. The intent is to be ascertained, and not to be frittered away upon critical niceties. It is to be applied to all cases within the mischiefs and the words. Sedgwick, 326-7. And in the spirit of this rule we will examine the provisions before us.
We take the “ premeditated design ” of our murder in the first degree to be simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent, and need not be slow or last long. This very plainly appears, not only by the force of the words used, but also by the apparent use, throughout the definitions of murder and manslaughter, of the terms, “ design ” and “ premeditated design,” to effect death, as co-equal terms.
The definitions of murder in the third degree, and of manslaughter in the first, second and third degrees, use the words “ without design to effect death,” thus positively excluding such a design. And the design so excluded is necessarily the premeditated design of murder in the first degree. But the definition-of murder in the second degree does not use the same words, but instead, “ although without any premeditated design to effect the death of any particular .individual.” The word “ although ” implies a doubt: a concession of something not positively determined. The phrase sounds, in-a critical ear, as -if design were not absolutely excluded; but that, the other conditions being present, the crime might be with or without design. It is lamentable that such careless and un
The benignant policy of our statute is very manifestly to distinguish between homicides with and without intent to kill; and it would be a violence to the intention, not warranted by the letter, of the statute, to confound the two classes of crime, so inherently differing in guilt, and to put both in one degree. But the doubt arising from the unfortunate language has happily been already solved by this court, in this very case, when it was first here. Speaking of the degrees of murder, the court said: “ An examination of the above statutes will show that murder in the first degree is .the unlawful' killing of a human being with express - malice aforethought, that is with premeditation and deliberation,'while murder in the second'and third degrees is such unlawful 'killing with implied malice aforethought, that is the malice which the law implies from the depraved mind and recklessness of human life in the one case, and from the felonious act in which the slayer is engaged in the other case.” Hogan v. State, 30 Wis., 428. That is to say, murder in the first degree goes on actual malice, and murder in the other degrees on constructive malice. So that we have the phrase “although without any premeditated design to effect the death of any particular individual,” in the definition of murder in the second degree, so far as intent is concerned, declared equivalent to the phrase “ without any design to effect death,” in the definition of murder in the third degree.
Then the policy of the statute is determined, to put all statutory murder with actual intent to kill in one degree by itself, and all statutory murder with constructive intent to kill in the lower degrees of the crime.
The intent to take life, in the former case, may be to take the life of the person killed, or of another particular person, or of some person without discrimination. This is the design of the statute in the distinction, and the words of the statute are sufficiently comprehensive to include any killing with intent
We can see, in principle, no more reason or propriety for confining the second degree of murder to cases of .general malice, than of excluding them from the first degree of murder, in a proper case. For it is not the circumstances of the homicide, but the actual or constructive intent, which is the ground of the distinction. It therefore seems to us to be reasonable and necessary to hold murder in the second degree to include all cases of homicide, without actual intent to kill any one, committed under the other conditions of the statute, whether the malice which the law imputes be against several or against one only, unless the language of the definition necessarily confines it to cases of imputed malice against several.
The first condition of the statute is, that the act producing death shall be imminently dangerous to others. It has been said that every act producing death must be thus dangerous. Perhaps this is literally true. But the statute does not go on fortuitous or latent danger, but on essential and apparent danger, of the act producing death. The act must be inherently and consciously dangerous to life, not such as casually produces death by misadventure. It must be dangerous in and of
Then the act shall evince a depraved mind, regardless of human life. These qualities of the act equally apply to one or many. And we have the act producing -death, imminently dangerous to others, and evincing a depraved mind, regardless of human life, the essence of the crime, all corresponding with particular malice as well as with general malice. They do undoubtedly include cases of general malice, but as undoubtedly-do not exclude cases of particular malice. And when all the same essentials of guilt apply as well to one case as to the other, it ought to take great force of language, incidentally used in the statute, to exclude either. It is clearly the purpose of the statute to include both, because the essential elements of crime are identical in both.
In our view of murder in the second degree, it goes in any case upon constructive intent to kill, intent imputed by law where there is no actual intent to kill. And this we hold to be expressed in the statute, in language sufficiently comprehensive to include all cases meeting the conditions of the crime, whether proceeding upon general or particular malice, without any words sufficient to exclude either.
The jury acquitted the plaintiff in error of intent to kill any human being. They found that his act producing death was imminently dangerous to others and evincing a depraved mind, regardless of human life. If he had aimed the fatal blow at the group of persons who came upon the land with the deceased, indiscriminately, it is admitted that his crime would have been murder in the second degree. Why or how, in reason or in law, should his crime be different because he amied the blow at the deceased only? jHow or why was the act more or less dangerous to others, or more or less evincing a depraved mind, regardless of human life ? How or why, when the plaintiff in error intended to kill no one, was there more or less want of any design to effect the death of any particular individual ? v It seems to us that, if the plaintiff in error was not guilty of murder in the first degree, all the conditions of murder in the second degree, positive and negative, apply to his case, as clearly as if he had rushed into the group and struck the fatal blow indiscriminately.
A different construction of the statute would convict and punish for murder in the second degree a crime committed towards several, involving the death of one only,-and reduce the same crime, committed against the one killed alone, with all the same qualities and conditions, with the same moral and le-, gal guilt, to manslaughter. The imminently dangerous act evincing a depraved mind, regardless of human life, distinguishes this grade of crime from manslaughter, as the want of
The statutory definitions of homicide were intended to take the degree of guilt out of the subtleties of the common law. And we have therefore not considered ourselves at liberty to consider the language of the statute in the light of those subtleties. We have considered the question without any subtlety of reasoning, upon the plain policy and purpose of the statute and the reasonable construction of the language employed.
We carefully considered the case of Darry v. People, supra, before we came to this conclusion. As already seen, the question there was not altogether the same. We admire the extent of learning and acuteness of reasoning-exhibited in that case. But, while we concur in the positive construction which the court in that case gives to the statute, we have not been able to adopt theiy negative construction, ‘excluding cases of particular malice.
The court below seems to have put substantially the same construction on the statute as we do, and charged the jury accordingly. We think the charge was correct.
And, as these points dispose of all the grounds of error assigned in this court, the judgment of the court below must be affirmed.
By the Court. — Judgment affirmed.