2 Morr. St. Cas. 1422 | Miss. | 1872
The main points presented in this cause were fully considered and determined by this court when the case was here before. They were then carefully examined, and the result of the examination of the various authorities briefly stated. The case was then reversed, because the court had instructed the jury that if the plaintiff in error “made an assault and battery upon his
It is there said, that “ in presumption of law, the plaintiff in error, in the absence of proof to the contrary, will be held to have intended the natural and probable consequences of every act deliberately done by him. But this presumption only amounts to prima facie, and not conclusive proof of such intention. The jury should have been left free to consider whether the testimony offered by the accused to rebut this legal presumption, or otherwise submitted to them on the part of the state, satisfied their minds of the absence of such intention.” Jeff v. The State, 37 Miss. R., 321.
The same principles asserted in the opinion just cited, were presented to the jury in several charges given by the court at the instance of the state, and also in a modification of one of the defendant’s instructions on the last trial; and these are the grounds of error assigned for reversal now.
The cause has been again argued before us with distinguished zeal and ability, and upon the supposition that the principle asserted in our previous opinion is in harmony with the'rules now contended for by counsel for the accused.
In this we think that counsel are wholly mistaken. But as mere pride of consistency — especially in adhering to error — is no part of the meed we covet in our judicial labors, we have given full consideration to the arguments and authorities relied on to establish the conclusion contended for, without reference to our former opinion.
That there are some precedents to be found in the books where the principle is asserted that the intent of the defendant in making the assault is a question of fact for the jury, and that the law raises no presumption about it in cases of this description, should not be matter of surprise, considering their great number and variety, as well as the labor-saving facility with which precedents are sometimes made.
Looking back to the doctrines of presumptive evidence, and the reason on which they rest, as stated by the elementary
The law does not always require the production of direct or positive proof oí the existence of acts, facts, or intents, upon which to base its judgments. Deriving its principles often from human experience of human motive and conduct, it infers, or presumes sometimes, the existence of one from proof of the other. Indeed the elementary writers on the law of evidence abound with illustrations of legal presumption, which are even conclusive and indisputable, founded on this philosophy of human experience, as to the intimate connection between human motive and human conduct. The rule of law, in such eases, is not always a rule of inference from testimony alone, but sometimes a rule of protection, as expedient for the general good. These general doctrines of presumptive evidence are not peculiar to the municipal law, but are shared by it in common with other departments of science. Thus the presumption of a malicious intention to kill, from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle of its application. The one fact being proved, the other, its uniform concomitant, is universally and safely presumed. It is this li uniformly experienced connection ” which leads to its recognition by the law without other proof; the presumptions having more or less force in proportion to the universality of the experience. Hence the doctrine of conclusive and disputable, or prima facie, presumptions. See 1 Greenleaf Ev., p. 20, § 14.
. Of this latter class (disputable or prima facie presumptions of law) is the general presumption of innocence. As men do not ejenercdly violate the penal code, the law presumes every man innocent, until the contrary is proven. So, on the other hand, as men seldom do unlawful acts with innocent intentions, when an unlawful act is proven the presumption of innocence is rebutted, and the law presumes such unlawful act to have been criminally intended’, until the contrary is made to appear. 1 Greenleaf Ev., pp. 42, 43, § 34.
In the third volume of his work on evidence, Mr. Greenleaf,
So, in the case of Rex v. Farrington, 1 Eng. Crown Cases (Russ. & Ry.), 207, the prisoner was indicted for setting fire to a mill, with intent to injure the occupiers thereof; and it was held by all of the twelve judges present, that an injury to the mill, being the necessary consequence of setting, fire to it, the intent to injure might be inferred; for a man must be supposed to intend the necessary consequences of his own act. See also, Rex v. Cox, id., 362.
In Dufiie’s case, id., 364, this question did not arise. There the jury expressly negatived the intent laid in the indictment, and found him guilty of the act charged, but with a different intent from that laid in the indictment. As, however, the intent found by the jury was embraced, in the prohibition of the statute upon which the indictment was founded, though not included in the indictment, the crown officer insisted that the conviction was right and sentence should be pronounced, and
The case-of Rex v. Boyce, 2 Eng. Crown Cases (Moody), 29, is a case of the same hind, where the jury expressly negative the intent laid in the indictment, but find him guilty of another interit, and the judges on the point reserved held the conviction wrong.
• The case of Rex v. Gillon, id., 85, only decides, that where two intents existed, it was immaterial which was the principal intent and which the subordinate one; and, therefore, where one only was charged,’and the jury found that intent as existing, but only as secondary to another principal intent not laid-in the indictment, the conviction was held proper.
■ The case of Rex v. Hunt, id., 93, was an indictment for maliciously cutting. The intent charged in the first - three counts, was to prevent apprehension; in the fourth, to do the prosecutor some grievous bodily harm. The jury found the prisoner guilty, and stated, that the thrust was made with im tent to do some grievous bodily harm upon anybody' upon whom it might alight, though the particular cut proved was not .calculated to do so. The court held, that malice against the individual cut is not essential; that general malice is sufficient'; ■ that the intent to do grievous bodily harm is sufficient, though the cut is slight, and not in a vital part; that-the question-'in such case is, not what the wound is, but wffiat wound was intended.
' The case of Regina v. Cruse and wife, reported in 8 Carr. & Payne, 541, and cited by counsel from a mere syllabus contained in the 34th volume of English Common' Law Eeports, is not in conflict, so far as we can learn from the booh referred to, with the general doctrine above stated. It only decides, that “ on an indictment- under the statute, 1 Yict., ch. 85, § 2, for the capital offense of inflicting an injury dangerous to life, with intent to murder, the jury ought not to eonvict, unless they are satisfied that the prisoner had in his mind a positive intention to' murder; and it is not sufficient, that it would have been murder if death had ensued.”
Prom the review of this case, contained in the last edition of
Mr. Bussell, in treating of this same subject, refers to the same case in a note, and quotes Patterson, J., as follows: “ Although drunkenness is no excuse in any crime whatever, it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention, and yet he may be guilty of very great violence.”
See also 1 Bishop’s Crim. Law, § 248 (end of section), and note 2, referring to the case, as not affecting the general rule stated by him, that “ the law presumes that every person intends to do what he does, and intends the natural, necessary, and even probable consequences of his act.” See again same author, § 269, and 299-301, treating of drunkenness as connected with intention-, and also see § 514, and 3 Greenleaf Ev., §§ 6 and 7, as to this case. Not having the full report of the case at our command, we have been thus particular in observing its citations, for the reason that great reliance is placed upon it as an authority in this case, and it is also the foundation of the misconceptions of the judges in cases which are cited and relied on from some of the American courts, which we shall hereafter have occasion to notice.
In Rex v. Philip, 1 Moody Crown Cases, 263, it was resolved by the judges that burning of a ship, of which the defendant
In Regina v. Hill, 8 Carr. & Payne, 274; 34 Eng. C. L. R., 388, before Mr. Baron Alderson, he is reported, in summing up, to have said: “ There are two questions of fact, which I shall leave to you: first, did the prisoner utter this bill to Mr. Minor as a true bill, and meaning that he should take it as such ? And, second, when he did so, did he know it to be forged % If you think that he did, you ought to find, as a necessary consequence of law, that he meant to defraud. I say, that you ought to infer it, if you are satisfied on the other two points. A man must be tafeen to intend the consequences of his own acts, and must intend to dpfraud if he pay another a false note instead of a real one.” ¡
Rex v. Dixon, 3 M. & S., 11, is a strong' case in favor of the position that the law will infer or presume criminal intent from the doing an unlawful act. And to the same point is the case of Rex v. Woodburne et al., 16 Howell State Trials, 54, where the intent to maim was held to be a presumption of law from the acts proved. . •
It will be seen from the cases cited, that this doctrine is not peculiar to the law of homicide, but prevails in all the departments of criminal law.
Having noticed some of the principal English cases relating to the point under examination, we will now advert to some of their elementary writers.
In Foster’s Crown Law, 255, the rule is thus stated in his introduction to his discourse on homicide: “ In every charge of murder, the fact of hilling being fa'st proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence against him; for the law presumeth the fact to have been founded in malice, until the contrary appearetb.” See also p. 290, to the same effect. Lord Hale, in his Pleas of the Crown, p. 455, says: “ When one voluntarily Mils another, the law presumes it to be malicious, and that he is hostes humani generis.” Mr. Blackstone, in the 4th volume of his Commentaries, says
Mr. Hawkins, vol. 1, ch. 31, § 32, and Mr. East, vol. 1, 224, 340, state the rule substantially in the same way.
Mr. Bussell, in vol. 2, pp, 730, 731 (7th Am. ed.), treating of the law of presumptive evidence, says: “ Besides the presumptions which a jury may make from circumstantial evidence, there are also presumptions of law. Thus, on every charge of murder, the fact of. killing being first proved, the law presumes it to have been founded on malice till the contrary appear; aiid therefore all circumstances alleged by way of justification, excuse, or alleviation, must be proved by the prisoner, unless they arise out of the evidence produced against him. Indeed,” says he, “ it is a universal principle, as Lord Ellenborough observed in the case of Rex v. Dixon, 3 M.,& S., 15, that when a man is charged with doing an act, of which the probable consequences may be highly injurious, the intention is an inference of law, resulting from the doing the act; ” and the same principle is stated on pp. 544, 545, id., and p. 362.
From the examination we have been able to make, we think it may be safely affirmed as the settled doctrine of the English law, with scarcely a respectable authority to the contrary, from the days of Lord Coke to the present time, “ that a party is presumed to intend the natural or even probable consequences of his act,” as an inference of law, subject to be rebutted by any evidence to the contrary in the cause. • ■
Before proceeding to examine the cases referred to as establishing a different rule in this country, we will refer to the case of The Com. v. York, decided by Chief Justice Shaw, in 9 Metcalf, 93, as affording a most careful, able, and luminous discussion of the whole subject, and sanctioning the view we have taken of this case. It is true this was a case of murder; but Chief Justice Shaw, in his elaborate and learned judgment, discusses the general question, defines what is meant by malice in a legal sense, or malice in law, as contradistinguished from mal
. To this effect, see Wharton’s Am. Grim. Law, §§ 1172, 1173, 712, and numerous English and American cases cited. State v. Girkin, 1 Iredell, 121; State v. Green, 7 id., 39; Com. v. Webster, 5 Cush, 305.
The first case cited by counsel for the accused is the case of The State v. Stewart, 29 Mo. R., 421. In this opinion, not occupying twenty lines, without an authority cited, either by the- counsel for defendant or the court, for the position, and without one word of explanation, the court says: “The intent of the defendant in making the assault was a question of fact for the jury. The law raised no presumption about it, and it was error for-the court to tell the jury that the law presumes, that -every man intends the natural, necessary, and probable consequences of his acts.” The facts of the case are
The next authority relied on is Rex v. Cruse and Wife, 34 Eng. C. L. R., 522. We have already seen that this case does not touch the point now before us. It was a question whether the defendants, in their intoxicated condition, were capable of the intention which the law presumes from unlawful acts.
The next case cited is the case of The State v. Bill Jefferson, a slave, 3 Harrington, 571. “ The prisoner was indicted for an assault and battery with intent to murder. He shot at a negro girl with a loaded gun, and within shooting distance. None of the shot hit her. The prisoner, when arrested, said that he meant to cripple, but not to Mil.”
This 'is the whole statement of the case contained in the report. The opinion of the court is as follows: The defendant is indicted for an assault on Alice James, with intent to commit murder; and the point is made, and has been argued, whether the jury must be satisfied that the defendant had an actual intention to kill; or whether the law implies the intent in case of an act likely to produce death, as it would imply malice from such an act, where death ensued. The act of assembly provides that if any negro or mulatto slave shall,, with violence, make an assault upon another, with intent to commit murder, he shall be guilty of a felony, &c.
Under this act, we are of opinion that the intent must be proved, as well as the assault; but as the intent is a matter that can only be proved by other facts, all such facts must be considered in proof of the intent; as the character of the assault, the weapon used, the danger of producing death, .and the. means used to produce or avoid death.
“ Such has been the decision under a similar British statute-(Cruse’s case, 8 Carr. & Pay., 541; 34 Eng. C. L. R., 522).”
The case is as barren of authority as the case cited from Missouri. The citation of Cruse and Wife, as a case in point,, is a mistake, as already shown; and the reasoning of the court,, if tending at all to a conclusion on the point in controversy, rather seems to favor the doctrine of the text-books, that the
After quoting the act of assembly of Delaware, the court says: “ Under this act, we are of opinion that the intent must be proved, as well as the assault; bid as the intent can only be proved by other facts, such facts are to be considered in proof of the intent, the assault, the weapon, the danger’, the means used to produce or avoid death.”
Does not the court mean to say, as a matter of law, that intent is to be imferred or presumed from the fact of shooting a gun loaded with shot, in shooting distance, at another, in the absence of all other facts? In any event, whatever may have been the views of the court on this point, they aro not sufficiently expressed to justify us in overturning a doctrine which has had the sanction of the ablest judges and text-writers for more than a century.
The next authority relied on in the brief of counsel for defendant is a reference to 1 Bishop Crim, Law, § 514, treating of attempts.
The author, in § 248, treating “ of what is a sufficient criminal intent,” says: “The law presumes that every person intends to do what he does, and intends the natural, necessary, and even probable consequences of his act. Of course the presumption of an intent to do the act is always open to be rebutted by evidence; but when this intent is established, the deduction that the consequences were also intended is generally, not always, conclusive.”
When the author comes to treat of “ attempts ” in the section preceding the one cited by defendant’s counsel, § 513, he says: “We have already seen that every man is presumed to intend the natural, necessary, and even probable consequences of an act which he intentionally performs; and that, in some cases, he is not permitted to deny this presumption” The author illustrates this class of conclusive presumptions by referring to cases of libel, bawdy-houses, forgeries, false oaths, &c.; and adds: “Here, if a man intentionally does the thing, he cannot be heard to say, in his defense, that he did not intend the ulterior mischief.” Immediately follows, § 514: “Then,
The next case cited in the brief of counsel for the defense, is the ease of Ogletree v. The State, 28 Ala. R., 693. It is cited in support of the rule stated by Mr. Bishop in his work on Criminal Law, just considered at §§ 513, 514, and seems to be on this point entirely consistent with the views we have just expressed on that subject. The court says: “ Whether he had that intent at the time of the alleged assault is a question of
The instructions of the court below on the point we have been considering, are in conformity with our views of the law, and are therefore not properly assigned for error here.
It is insisted that the second and sixth instructions given for the state “ are erroneous, in holding that proof that the defendant assaulted his master in resistance of legal chastisement with a deadly weapon, made out a prima facie case against him, upon which the jury was as much bound to act as if it had been conclusive, unless that prima facie case were rebutted and overcome by the whole proof in the case.”
The second instruction is in these words: “That malice is implied by law from the nature and character of the weapon used; and if the jury believe from the testimony that the master of the slave Jeff was about to inflict legal chastisement, and that Jeff resisted that legal chastisement, and made an assault upon his master with a deadly weapon, that this is prima facie evidence that he intended to kill his master; and the jury will find him guilty as charged, unless, from the whole proofs in the case, they are satisfied that he did not intend to kill.”
The sixth instruction is as follows: “That when a prima facie case has been made out against the defendant, the jury are bound to act on that prima facie ease, as much as if it were conclusive, unless that prima facie case is rebutted and overcome by the whole proof in the case.”
These instructions are not liable to the objections made imder the proofs in this case. They do not involve the question as to changing the burden of proof , nor do they exclude any fact in the cause from the consideration of the jury; but they leave the jury free to consider and decide the only point insisted bn for - defendant — and that is the main point charged in the indictment — -whether he intended to kill deceased; and this they are to consider from all the proofs in the case.
Judgment affirmed.