delivered the opinion oe the court.
Having been sentenced to be hanged for the murder ofWilliam Peach, the appellant has appealed to this court to obtain a reversal of that judgment.
The grounds relied on will be noticed in the order in which they are presented in the brief of the appellant’s counsel.
He also stated that Smith was a physician, and had made an examination of the wound on the person of the deceased, and would prove that the ball struck in the cheek and ranged downward, and that this evidence would be important in connection with other -evidence in the case.
The attorney for the commonwealth insisted the motion for a continuance, and offered to admit that the statements of the affidavit as to what those witnesses would prove were true, and thereupon the court overruled the motion for a continuance. '
Counsel concede that this court has no power to reverse the judgment for-error in overruling the motion for a continuance, but they insist that the prisoner had a right to.the presence of his witnesses before the jury, and that the court, by compelling him- to try without them, is to be taken as having refused to admit important evidence in his favor.
We do not feel authorized thus,-by what seems to us to be a strained construction, to hold that the effect of the ruling of the court was to reject important evidence, so that we may thereby acquire jurisdiction in effect to reverse for error- in overruling a motion for a continuance, even if we could see that error had been committed. But if we could concur with counsel and take jurisdiction to look into the action, of the court on this point, we perceive no error.
As long as facts are disputed the presence of the witness relied .upon to prove them is often important, because from his
He stated that two of bis witnesses who were present at the commencement of the trial were then absent, and were sick and unable to attend. The facts to which he said they would swear were material. The court decided to proceed with the trial, but announced that if the witnesses could not be. obtained the motion to continue the case would be acted on when that fact was ascertained.
The witnesses were subsequently brought into court, and one of them testified, and the other, upon being brought in, said she had been sick in bed for a week and was unable to be examined as a witness on that day. The court directed the examination to proceed, and said that if .she showed herself unable to go on he would give time, whereupon counsel for the prisoner said they could only prove by her the same facts which had been proven by the other witness named in the affidavit who had already been examined, and declined to go on with the examination.
If this were error we have no power to reverse on that ground. The witness was the step-daughter of the prisoner; the circuit judge saw her, and must have believed she was able to testify, or he would, have suspended the trial until she was better, or have continued the cause. Counsel did not make an effort to go on with the examination, nor did 'they ask for
It does not appear what reasons the witness would have assigned for his opinion, and we can not say that the prisoner was prejudiced by the ruling of the court. It could only .be available here upon its being made to appear what reasons it was expected the witness would give, and then it would be necessary that it should further appear not only that the reasons on which the opinion was based were competent evidence, but it should also appear that the evidence was important. (Subsec. 1, sec. 334, Criminal Code.) While those who see a man may differ in their judgment as to whether he is drunk or not, this is a-subject upon which it is competent for a witness to give his opinion to the jury -without giving any fact upon which that, opinion is based. The witness had, at the prisoner’s instance, stated that he was drunk, and unless we knew from the statement of his counsel, made to the court at the time, what reasons it was expected the witness would give, we can not say he has been prejudiced.
These facts were admissible for the double purpose of proving malice and to identify the prisoner as the person who killed
The prisoner did not admit the killing. He had not only denied it by his plea, but had, by his words and acts appearing .in the evidence, imputed it to some unknown person. He was with the deceased when he was shot, and the only persons who saw the shooting done were the two sons of the deceased, -the eldest of whom was nineteen years of age.. The deceased having been shot, evidence that the prisoner had a pistol on his person on that'day tended to support the evidence offered to prove that he did the shooting by showing that he had on his person a weapon capable of inflicting the wound, and evidence that he had previously threatened the deceased was admissible for the same purpose. That he once entertained the purpose to kill the deceased tended in some considerable degree, especially under the circumstances of this ease, to prove that he did the killing. If, however, it also had a tendency to contradict the facts admitted by the commonwealth to be true, the court should either have rejected the evidence or have told the jury that they should not consider it except in deciding whether the prisoner did the killing. The court gave no such direction, and we are therefore to decide whether this evidence was inconsistent with the facts admitted.
' So much of the admission as relates to this point is in these words: “That at said time there was no unfriendly feeling or exhibition of unfriendly feeling or any act of hostility or ill-will manifested by defendant to deceased.” We understand this as meaning that there was then no unfriendly feeling or act of hostility or ill-will exhibited, and not that the prisoner did not then entertain ill-will or hostility toward the deceased. This seems to be not only the literal meaning of the language, but it is not to be supposed either that the prisoner meant to swear, or the commonwealth to admit, that the witness would
The first objection taken to the instructions given is to the third, which reads as follows: “ Malice, in the legal sense, denotes a wrongful act done intentionally without just cause, and is implied by law from any deliberate cruel act committed by one person against another, however suddenly done.” This instruction is copied from one given in Kriel’s case (5 Bush, 365), and approved by this court. The language of the instruction was not discussed in Kriel’s case; and while it expresses the legal idea intended to be conveyed with accuracy, its language is not strictly accurate. Malice can not denote an act, but, on the contrary, an act may denote — i. e., furnish evidence of — malice. And so the court goes on to say that malice is implied by the law from any deliberate cruel act. But the first clause of the instruction, “ Malice, in the legal sense, denotes a wrongful act done intentionally,” although not accurate in itself, was not prejudicial to the prisoner.
The residue of the instruction is in accordance with a long recognized and, until recently, universally accepted rule of the common law. Malice is a malignant passion and may exhibit itself in wrongful acts, and when an act is cruel and is done deliberately, as such acts are generally the offspring of an
It is urged by counsel that the instruction is wrong, because the jury were told that this legal implication exists, no matter how suddenly the act may have been done; that under such an instruction, when taken in connection with the court’s definition of the term “aforethought,” no room is left for a distinction between murder and manslaughter. The court defined “aforethought” as follows, also in the language of an instruction in Uriel’s case: “ By the term aforethought is meant a predetermination to kill, however sudden or recently formed in the mind before the killing.” •
In giving these instructions the court was defining the crime of murder, and in order to do so must of necessity exclude manslaughter from consideration. But when, at the instance of the prisoner, the court came to define manslaughter the jury were told that if he killed the deceased without malice —i. e., that the act was not deliberate and cruel, but in sudden heat and passion, and not in self-defense — he was only guilty of manslaughter. i: Killing in sudden heat and passion would not be a deliberate act, nor would it be cruel in the sense in which that word was used or in its ordinary signification. "Whether an act is cruel or not does not depend upon the nature of the act, but upon the circumstances under which it is done and the motive prompting it. No one would think of calling the killing of another in self-defense, or under the influence of a frenzy of passion aroused by great provocation suddenly given, a cruel act.
When it is said that an act was cruel, we understand the speaker to refer to the circumstances attending it and the animus with which it was done, and not to the nature of the act itself or the consequences flowing from it.
If the act be cruel — i. e., unnecessary and wanton — it does not matter how recently the determination to do it may have
After the argument to the jury had commenced, the court, at the instance of the commonwealth, instructed the jury “that the presumption of sanity is as universal as the presumption of innocence, and before they could believe a man was not of sound memory and discretion it must be established by proof to their satisfaction.” There ivas nothing in the evidence or in any instruction asked by the prisoner to render such an instruction necessary; but we are unable to see how it can have prejudiced his rights.
It is not every abstract instruction that will constitute error for which the judgment should be reversed. It ought to appear, before such an instruction is made the sole ground of reversal, that, it is at least probable that the prisoner may have been prejudiced by it.4
The first of these instructions was to the effect that although the jury might believe beyond a reasonable doubt that the prisoner killed the deceased, yet if they believed that at the time of doing so he was laboring under the influence of intoxicating liquor to such an extent as to influence and pervert his passions and blind his reason, and that without provocation he was unconsciously precipitated into the commission of a crime which he had never meditated, and which he would never have committed when properly sober and self-possessed, they must acquit of murder; but might find him guilty of manslaughter, provided they further believed that his condition was not the
Counsel cite and rely upon the case of Blimm v. Commonwealth (7 Bush, 320) and Shannahan v. Same (8 Bush, 463) as authorizing and requiring the instruction asked by them to be given. Whatever may have been said in Blimm’s case, the doctrine in the subsequent case of Shannahan can not be regarded as an authority supporting .the view presented in the instruction under consideration. After fully discussing the modern doctrine on this subject, and contrasting it with the ancient rule of the common law, the court summed up the result as follows: “What we do adjudge is, that in a case like this the fact of drunkenness, while it may be a circumstance showing the absence of malice, should not be singled out from the other proof, and the jury told that it mitigates the offense.”
This rule would have been infringed by the instruction in question. Evidence tending to prove that the prisoner was drunk was allowed to go to the jury, and then they were told in instruction number five, given by the court, that they had a right to take into consideration the facts and circumstances proven in the .case in determining the existence or non-existence of malice.
This left the jury to consider the fact of drunkenness in connection with all the other evidence in the cause in deciding whether the killing was malicious, and gave the prisoner all the benefit he was entitled to from the evidence touching his intoxication.
The prisoner’s counsel- also asked the court to instruct the jury that voluntary manslaughter is the unlawful killing of another in a sudden quarrel or in heat and passion, and if they believed from the evidence that the prisoner did unlawfully, without malice, kill Wm. Peach in a .sudden quarrel or in heat and passion, they must find him not guilty of murder.
This instruction does not correctly define the law of man
Heat of passion, in order to reduce a killing with a deadly weapon from murder to manslaughter, must have arisen from some provocation which, out of a tender regard for the weakness of human nature, the law deems sufficient to arouse passions which the party is for the moment unable to control, -such as a blow or other actual trespass to the person, and some other wrongs not necessary to recite. But we know of no case in which heat of passion, without regard to the cause producing it, has been held to reduce an unlawful killing with a deadly weapon from murder to manslaughter.
■We have given the record and brief of counsel a, patient and careful consideration, but have been unable to see that the appellant has not had a fair and impartial trial according to the law of the land, and the judgment must be affirmed.