21 S.W.2d 115 | Ky. Ct. App. | 1929
Reversing.
The appellant, Charles McHargue, his brother, James McHargue, and Dolphia Mullins, were neighbors and fellow employees at a limekiln at Pine Hill, in Rockcastle county. Charles McHargue has been convicted of the murder of Mullins and sentenced to life imprisonment. Several grounds for a reversal are submitted to the court, one of which is that the evidence against him, if taken as true, proved him guilty of manslaughter at the most, and not of murder, and, therefore, the verdict is not sustained by the evidence. This ground is well taken, and he is entitled to a reversal thereon.
The homicide occurred at the limekiln on a Sunday in November, 1928. Mullins and James McHargue had jointly cultivated 10 acres of corn, and it appeared there had been some misunderstanding between them with respect to gathering it. On this Sunday both Mullins and the appellant, Charles McHargue, were at work at the kiln. James McHargue testified that he had come over to a point near the kiln to assist in making a coffin for a child, and as he came by the place where Mullins was at work they again discussed the matter of gathering the corn. A fight between them ensued. The evidence is conflicting as to who precipitated the affray, which resulted in Mullins violently striking James McHargue in the head with a shovel rendering him unconscious. At the *84 time the appellant, Charles McHargue, was on a lower floor or platform and not in sight of the combatants. He was in the act of spreading out his dinner when some one above him at the place where the fight was going on screamed, "Doffey Mullins has knocked Jim McHargue's brains out." The appellant hearing that immediately rushed up the short flight of steps and there beheld his brother prostrate on the floor with blood gushing from his head; and, according to the state's evidence, the appellant declared that no one could treat his brother that way and fired his pistol at Mullins, who was in the act of turning away. According to the evidence in behalf of defendant, Mullins was standing over Jim McHargue with the uplifted shovel with which he had struck him, and attempted to strike the defendant also. There is no dispute that Mullins did turn and flee, and that appellant continued firing at him, one shot taking effect in the back. Mullins died a short while thereafter. The evidence is uncontradicted that appellant and deceased had been on the best of terms and there had been no trouble of any kind, between them. The defendant explained that he carried the pistol because he had considerable money on his person for payment to coal diggers employed by him in a small mine which he owned.
The court gave instructions on murder, voluntary manslaughter, self-defense, and a qualified instruction on the defense of his brother. He also gave the usual instructions on reasonable doubt and the meaning of terms used.
In considering the ground upon which the case is reversed, namely, that the verdict is flagrantly against the evidence, it is well to note the characteristic distinguishing willful murder and voluntary manslaughter, namely, the presence or absence of malice prepense or malice aforethought.
So long as all killing incidental to a felonious intent was punishable by death, there was no practical need for a classification or division of such homicides into degrees or different offenses. For generations juries refused to convict unless there was shown a specific intent and deliberate purpose to take life. So the need for a classification became more and more apparent. Through gradual processes and progressive considerations of mercy and humaneness, it was declared that death should only be inflicted as punishment for "homicides specifically and maliciously intended." Accordingly, it became *85
necessary to distinguish between this class of murder and murder in which there was no such premeditated intent. In the evolution of the law, the respective offenses became known as murder and manslaughter. Subsequently statutes — the earliest in Pennsylvania — divided murder into two classes: Murder in the first degree being a homicide with a specific, premeditated, and deliberate intent to take life; murder in the second degree when that intent was absent. Wharton's Criminal Law, secs. 501-503. But this state has never-so classified homicide, the common-law distinction or classification of murder and manslaughter yet obtaining. Manslaughter has been divided into voluntary manslaughter, for which statutory penalties are prescribed, and involuntary manslaughter, which remains a common-law offense for which no punishment has been fixed by statute and which is, therefore, punishable only by fine and imprisonment in the county jail. Sprigs v. Commonwealth,
An intentional, unnecessary, or perhaps a cruel killing is not always willful murder. It may be excusable if done in apparently necessary self-defense, or may be manslaughter when done without malice and in sudden affray or in sudden heat and passion. Farris v. Commonwealth, 14 Bush, 362.
As stated in 13 Rawle C. L., 789: "The law recognizes no emotional state accompanying intentional homicide other than malice, the ingredient of murder, and passion, which accompanies the homicidal act in cases of voluntary manslaughter. Hence, if the element of provocation is lacking, the crime — the other elements common to both murder and manslaughter appearing in the case — must of necessity be murder."
Premediated design or malice aforethought and heat and passion are contradictory states of mind and cannot exist at the same time with reference to the act of homicide. The existence of one element excludes the other. This is usually a question of fact for the jury to determine; but where there is no dispute as to the facts, or if only the evidence heard against the accused be considered, it becomes a matter of law for the court to adjudge.
To constitute murder there must have been a fixed design carrying with it deliberation and premeditation or predetermination (Buckhannon v. Commonwealth,
The definition and scope of manslaughter has been variously expressed. See Lucas v. Commonwealth (Ky.) 20 S.W.2d ___,
In our further assistance we may analyze the constituent elements of manslaughter. The phrase "sudden heat and passion," or as sometimes expressed, "sudden heat of passion," or "hot blood," is something less than impulse of the moment (which may arise from malice). Henson v. Commonwealth, 11 S.W. 471, 11 Ky. Law Rep. 314. The definition of passion given in Hocker v. Commonwealth, 111 S.W. 676, 33 Ky. Law Rep. 944 (as stated in Roberson, sec. 373) is: "Passion is that state of mind when it is powerfully acted upon and influenced by some external cause, and when used to describe an essential element of defense to manslaughter, it includes both anger and terror. And, while the word usually refers to a state of the mind brought about by anger, it properly speaking, expresses that condition of the mind when it has lost its self-control, and becomes the passive instrument of the actuating cause or feeling."
However, as declared in Howard v. Commonwealth,
The degree or exact meaning of this mental disturbance has been declared only in general terms; such that the passion of the slayer must have been to negative deliberation, that is, to deprive him of power to design to kill or to overcome and suspend the exercise of judgment and self-control, although not to the degree that volition should have been destroyed or reason dethroned, for that would be equivalent to utter insanity. "The principle involved in the question would seem to suggest as the true general rule that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men of fair, average disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment." Robertson, sec. 373; 13 Rawle C. L. 789.
That degree of passion, though suddenly aroused, is often present in homicide cases, but that of itself does not mitigate the crime. All these elements must concur: (1) Suddenness; (2) heat of passion; and (3) adequate provocation. Heat and passion without such provocation, or provocation, however great, that fails to arouse spontaneously the other element, will not be sufficient to reduce the homicide to voluntary manslaughter. Cavanaugh *88
v. Commonwealth,
Bishop, in his work on Criminal Law, sec. 701, says: "Not attempting an impossible exactness, we may deem it in a general way to be that the law accepts human nature as God has made it, or as it manifests itself in the ordinary man, and every sort of conduct in others which commonly does in fact so excite the passions of the mass of men as practically to enthrall their reason, the law holds to be adequate cause."
We must, therefore, look to the cases in which this principle has been applied and be guided by them in determining the sufficiency of the provocation in the case before the court.
In the annotations to Commonwealth v. Paese, 17 L.R.A. (N.S.) 795, it is stated: "The authorities seem agreed that the killing or assaulting of a relative will *89 amount to a sufficient provocation to reduce the killing of the wrong-doer to manslaughter, provided no previous wrongful intent on his part is shown."
Several cases are there referred to applicable to this case. In Collins v. United States,
In the case of Guffee v. State,
See, also, State v. Grugin,
In Campbell v. Commonwealth,
In Roberson's Criminal Law, sec. 382, several other domestic and foreign cases are cited in which variant facts were deemed provocation sufficient to mitigate the crime of murder into manslaughter, and others insufficient for that purpose.
With the distinction between murder and manslaughter in mind, we approach a consideration of the facts as they appeared to the appellant, and look to his situation at the time.
While spreading out his lunch with his mind centered thereon, he suddenly hears the excited exclamation just above him that his brother, with whom he had been intimately and closely associated, had had his brains beaten out. The average man, we think, would have immediately *91 rushed to the point. In a moment the defendant saw the unconscious form of his brother prostrate on the ground with blood gushing from his head, and his assailant in the act of turning to flee (according to the commonwealth's evidence), or standing there over his brother with the instrument with which he had struck the blow ready to strike again (according to the defendant's evidence). The average man, we think, would have lost his self-restraint and would have acted as did the defendant. It may be said parenthetically that the carrying of this deadly weapon by the appellant is a matter of condemnation, and no excuse or condonation is intended for this violation of the law. But for it this unfortunate tragedy would never have occurred. We mean simply to say that, had the average man had it available under the circumstances, it would be but natural and inherent in him to use it at the moment. Nature planted in us a dominant fraternal love, and when this virtue is so deeply touched and aroused, not to recognize that inherent attribute would violate the principles of eternal justice. This sentiment is eloquently stated in Guffee v. State, supra, thus: "Down deep in the human heart there is an abiding love for our kith and kin, which intensifies as we approach a common parentage. A brother's virtues are magnified and his faults overlooked, and upon summons we fly to his relief without pausing to contemplate the consequences to ourselves, or taking much time to consider whether, in the particular instance, he is in the right or the wrong. It suffices usually for us to know that he is in danger and needs our assistance, and we blindly follow that impulse born in us, and which impels us to rush to the rescue and save him from harm, and leaves us to contemplate our actions after the danger has passed and reason has resumed its sway. This infirmity (or virtue) in human nature cannot be ignored in the practical administration of justice."
As stated, the defendant and deceased were friends. There was no proof of any preconceived purpose on the part of the defendant to take the life of Mullins, nor facts from which malice aforethought might be reasonably inferred. When suddenly apprised of the condition of his brother, he yielded to an impulse derived from nature and common to humanity, which is recognized as a legal provocation. Where there is no evidence of premeditation or other proof of malice, proof of reasonable and adequate provocation will negative malice and *92
reduce the offense to voluntary manslaughter. Helm v. Commonwealth,
Criticism is made of the lower court's ruling upon the admission and rejection of evidence. There were some errors admitted in rejecting testimony offered in behalf of the defendant, but it appears that similar evidence was admitted during the progress of the trial, so his rights were not prejudiced.
It is also urged upon us that error was committed in qualifying the instruction with respect to the right of the defendant to defend his brother; this qualification being to the effect that, if James McHargue brought on the difficulty between Mullins and himself and when he had no reasonable grounds to believe it necessary to protect himself from Mullins, and thereby brought on such danger to himself, the jury could not acquit the defendant upon the grounds of the defense of his brother. As stated, the evidence as to the encounter between James McHargue and deceased was conflicting, and, while this defendant had no knowledge of what had transpired, his right to defend his brother no greater than the brother's right to defend himself. He stood in the place of his brother. McIntosh v. Commonwealth, 96 S.W. 917, 29 Ky. Law Rep. 1100; Stanley v. Commonwealth,
Extracts from the argument made by counsel assisting in the prosecuting are in the record, and it is vigorously insisted that this alone constitutes sufficient error for a reversal. Counsel did go out of the record and stated to the jury what appears to have been his personal knowledge as to the high character and reputation for peace and quiet of the deceased. This was improper. It is likely not to occur on another trial.
The judgment is reversed for the reason indicated. *93