Aрpellant, Walter H. Miles, was tried and convicted for the murder of Harry Taylor. The jury found him guilty of murder of the second degree, and assessed his punishment at confinement in the penitentiary for a term of twenty-five years. From this conviction and the judgment rendered thereon Miles appeals to this court, and assigns numerous errors. We will discuss, but three of the errors assigned.
Very clearly from the statement of facts it was the duty of the learned judge trying the case to submit to the jury the law applicable to murder of the first degree, murder of the second degree, manslaughter, and self-defense. And so viewing the case, the learned judge did instruct the jury upon each degree, and also upon self-defense. As the jury acquitted defendant of murder of the first degree, we deem it unnecessary to make any observations upon the charge оf the court relative to express malice or murder of this degree.
The court charged the jury upon murder of the second degree as follows: “Every rash and inconsiderate killing under some sudden impulse, wherein there is no sedate mind and formed design to kill, is murder in the second degree. The law implies the malice. ■ Every voluntary killing of a human being is murder in the second degree, unless the circumstances attending it upon оne hand show express malice, which would then be murder in the first degree, or, upon the other, such as would reduce the offense to manslaughter, or which would excuse or justify the homicide.”
The first paragraph of this charge is evidently erroneous; yea, radically incorrect. For it is not true that any rash and inconsiderate killing tinder some sudden impulse, wherein there is no sedate mind and formed design to kill, is murder in the secоnd degree. For does the law in such a killing imply malice. For the k.lling may be upon a sudden impulse, and the act rash and inconsiderate,
And again: if there be adequate cause to arouse the passion, and upon a sudden impulse a party rashly and inconsiderately kills, he would be guilty, not of murder but manslaughter. This charge takes from its legitimate location, and forces murder of the second degree within the boundary of manslaughter. But it is urged by the assistant attorney-general that the next paragraph so qualifies this objectionable charge as to render it harmless. While it is conceded that the second paragraph is a correct enunciation of the law, we are not by any means satisfied that it was understood by the jury as being a qualification or modification of the first paragraph.
In the first, a rash and inconsiderate killing is spoken of; in the second, voluntary killing is thе subject-matter of the charge. Mow may not the jury have understood and believed that these were different characters of killings or homicides, and that, if the killing was upon a sudden impulse, and was rash and inconsiderate, without qualification, such killing would be murder; and that circumstances of reduction or justification applied to and qualified alone a voluntary killing. We are of the opinion that the first paragraph "was such error as was calculated to injure the rights of the defendant.
Upon the subject of manslaughter, the court charged as follows:
“If the killing was provoked by Harry Taylor riding against the defendant, or attemрting thereto, if such provocation was in fact the cause, and if it did then and there so inflame the mind of this defendant as to prevent it from exercising cool reflection, then the offense would be manslaughter.”
Counsel for the appellant object to this charge because, they say, the jury are restricted in the consideration of the question as to whether the killing was only because the deceased rode his horse against the defendant, or attempted to do so; that, in considering the adequacy of the cause to produce the passion, and the effect of such passion upon the mind оf the defendant, by the charge the jury are limited to the act of riding or attempting to ride the horse against the defendant. Counsel contend, and we think justly, that in passing upon the sufficiency of the cause to arouse the passion, and the degree to which the passion was aroused, that is, was the mind incapable of cool reflection, the jury, instead of being restricted, in their investigation of these questions, tо what occurred at the time of the homicide, should have been instructed to look to all the facts in the case, in passing upon these questions.
How, while it is true that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation, yet in passing upon the sufficiency of the provocation, and on the effects of the passion upon the mind of the defendant, the past conduct of the deceased toward defendant, his threats and bearing, in fact all the facts and circumstances in the case, should be considered by the jury. An act standing alone may not bе a sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not tо the act committed at the time of the homicide.
We are of the opinion that the charge of the court was too restrictive upon the subject, and that the attention of the jury should have been directed to all the facts of the case; not by the special enumeration of each, but they should have been told that, in pass
That part of the charge of the court relating to self-defense under threats is as follows: “If Harry Taylor did threaten to kill this defendant, and if at the time of the killing Harry Taylor did make such a demonstration as to induce the defendant to believe he did then intend to execute such threat, then this defendant would be justifiable in tаking the life of said Taylor; and if you so believe you should acquit.” This charge is qualified as follows: “ Or, if the defendant did shoot at Harry Taylor before the latter made any effort or demonstration to executе such threats, then there would be no justification if even Harry Taylor did subsequently manifest any such intention.”
The law upon this subject is that, to justify under threats, “it must be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threats.” In the qualification above cited the learned judge departs from the statute, and for “ some act manifesting an intention to execute the threats,” he substitutes “ made any effort or demonstration.” How, whether he intended to qualify effort by demonstration, or demonstration by effort, we know not. Demonstration has several meanings. The first given by Hr. Webster wаs certainly not intended by the learned judge. The second is in harmony with the meaning given by our courts to “ manifest.” It is, “an expression of the feeling by outward signs; a manifestation; a show.” “Effort” means “an exertion of strength; strеnuous endeavors; laborious attempts; struggle directed to the accomplishment of an object; exertion, as an attempt to scale a wall; an effort to excel.” (Webster’s Hnabridged Dictiоnary.) There is no word in the English language, we think, better understood by the people generally than “ effort.” And when told that an effort must have been made to execute the threats, the jury doubtless understood the сourt to mean an attempt This means something more than a demonstration or an act manifesting an intention. It means an actual attempt to execute the threats. And, as the threats were to take the life of the defendant, an effort means an attempt to kill defendant.
How, if there was an effort to take the life of defendant before he shot, he could stand upon this fact, without threats. The threats are of no value or benefit to him, for his right of self-defense was complete without them. We are not treating of a case of mutual combat, or a case in which the defendant provoked the difficulty.
Reversed and remanded.
[Opinion delivered May 6, 1885.]