5 Utah 451 | Utah | 1888
Lead Opinion
At the September term of the district court of the second judicial district, the appellant was found guilty by a jury of the crime of murder in the first degree. A motion for a new trial having been submitted and overruled, and the defendant, as was his legal right, having elected shooting as the mode of punishment, the court sentenced him to be shot on the 26th day of November, 1887. Prom that judgment he has appealed to this court.
The first ground of reversal relied upon by the defendant, in the order we will consider the errors assigned, is that the evidence was insufficient to authorize the verdict. It appears from the evidence given on the trial that the deceased, Michael Cullen, and the appellant, Andrew Cal-ton, and one Jerry Tiberty were acquaintances, and were residents of Star mining district, in the Territory of Utah; that about 10 o’clock of the morning of July 14,1887, these men met a few miles away in the town of Milford, the two last named having gone there together. Tiberty testified to this effect: When they alighted, Michael Cullen came up, and they went into a saloon and drank with him.
Section 1917, Comp. Laws Utali 1876, gives, in substance, tbe .common-law definition of murder, viz.: “Murder is tbe unlawful killing of a human being- with malice afore-tbougbt;” and section 1918 defines malice essential to murder: “Sucb malice may be express or implied. It is express wben there is manifested a deliberate intention unlawfully to take away tbe life of a fellow-creature; it is implied when no considerable provocation appears, or wben tbe circumstances attending tbe killing show an abandoned or malignant heart.” Section 1919 makes tbe distinction between murder in tbe first and in tbe second degree: “Every murder perpetrated by poisoning, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of or attempt to perpetrate any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect tbe death of any other human being, other than him who is killed; or perpetrated by any act greatly dangerous to tbe lives of others, and evidencing a depraved mind, regardless of human life, is murder in the first degree; and any other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.” Section 1921 defines manslaughter: “Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: First, voluntary, upon a sudden quarrel or heat of passion; second-, involuntary, in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection.” While the killing shown by the evidence in the case was immediately after an angry quarrel and a violent altercation, attended with heat of passion, it cannot be said that it was not in pursuance of a specific and distinctly formed intention to take.'the life of the deceased. '.There being.an intention to kill, and no provocation to justify or excuse it, the killing must have been malicious, unless the passion was so great that the intent resulted from it, and the in
We are of the opinion that the evidence authorized the jury to find that the appellant, with the capacity and opportunity to reason, and with premeditation, formed a specific and distinct intention to take the life of Cullen, and, therefore, to find him guilty of murder in the first degree. The proposition of law that homicide is murder in the first degree when the person killing had the opportunity and the capacity to deliberate upon the act, and to form a specific and distinct intention from such deliberation, is supported by the following authority: 2 Bish. Crim. Law, sec. 728; Keenan v. Com. 44 Pa. St., 55; 2 Whart. Crim. Law, secs. 1084-1106; People v. Bealoba, 17 Cal., 389; State v. Williams, 43 Cal., 344.
The appellant excepts to the following portion of the charge of the court to the jury, and assigns the giving thereof as error: “To reduce homicide to the degree of manslaughter on the ground solely that it was committed in the heat of passion, the provocation must have been considerable; in other words, such as was calculated to give rise to irresistible passion in the mind of a reasonable person. No slight or trivial provocation, such as is not calculated to engender uncontrollable passion in any ordinary man, will suffice.” Counsel for the appellant contend that such provocation as would be calculated to cause irresistible passion in an ordinary — a reasonable' — man is not necessary to reduce homicide that would be murder to manslaughter. The law, in selecting a human standard by which to measure human conduct, selects an ordinary, not an extraordinary man; a reasonable, not an unreasonable, man. For the law is based upon reason. It selects reasonable standards. It selects such a provocation as the reason of such a man would not be likely to control; in other words, not such a provocation as would be calculated to awaken a passion that the reason of-an ordinary man would be -likely
The defendant also alleges as error the statement to the jury of the following principle of law: “When insanity is relied upon as a defense to a criminal charge,' the' burden is upon the defendant to establish it, unless the evidence on the part of the prosecution tends to establish it.
The court, in substance, stated to the jury that the law will not permit a person who commits a crime while intoxicated to avail himself of jhis own “gross vice and misconduct” as a justification therefor. Appellant excepted to the use of the terms, “his owm gross vice and misconduct,” and assigns the same as error. This was a statement of the law with respect to an hypothetical case. In it the court did not say, as counsel urged that he did, that the appellant had such a gross vice, or that he had been guilty of such misconduct. The court characterized drunkenness as a gross vice and as misconduct. The court informed the jury that drunkenness, if proven, might be taken into consideration in determining whether the liomióide was willful and premeditated; and that the weight to be given to such fact, if found, was for the jury; and that they should receive evidence thereof with caution, and carefully consider it, in connection with all the evidence in the case. The jury were told to carefully consider the evidence of drunkenness, with all the other evidence. In this we find no error.
The court permitted W. H. Dickson, private counsel, to aid the assistant district attorney in the prosecution of the defendant. This action of the court the defendant assigns as error. Counsel for appellant refer to subdivisions 2, 5, and 6, sec. 257, Crim. Code, Laws Utah 1878: “The prosecuting attorney, or other counsel for the people, must open the cause, and offer the evidence in support of the indict
The appellant also asks for a reversal for the reason, as alleged, that he did not have sufficient time to prepare for trial. The homicide occurred on the 14th day of July, 1887. The indictment was found on the 9th day of the following September. The appellant was arraigned and counsel appointed to defend him, on the day following. On the 14th day of the same month he pleaded not guilty. A jury was impaneled on the 21st, and on the 24th of the same month returned a verdict of guilty. It does not appear that the defendant asked for further time to prepare for trial, or that other material evidence could have been produced if the trial had been postponed. The reason urged constitutes no sufficient ground for a reversal.
In the argument, connsel suggested that the record shows that the appellant was sentenced to be executed publicly. The use of the word “public,” in connection with the execution, being a clerical error, the court below possesses the undoubted authority to correct the judgment in that respect. We do not regard it as a ground for a reversal.
We find no error in this record sufficient to authorize a reversal. The judgment of the court below is affirmed.
Dissenting Opinion
dissenting.
I do not concur in affirming the conviction in this case. The defendant was convicted of murder in the first degree, without recommendation to mercy, and sentenced to death. The record shows that the prisoner was represented in his defense by counsel appointed by the court. After conviction, a statement was made, on motion for a new trial, embodying a full transcript of the proceedings on the trial, from which it appears that Charles W. Zane, assistant district attorney, and William H. Dickson, eoun-sel, appeared for the people. The record shows that Mr. .Dickson examined and cross-examined all the witnesses; indeed, that he conducted the entire case for the people, except that Mr. Zane, at the conclusion of the evidence, opened the argument to the jury for the prosecution, and that Mr. Dickson closed the argument. All this is shown in the record in detail, and nothing whatever is shown or stated as to how or in what manner Mr. Dickson became connected with the case, or that there was any reason shown for his appearance,.or for allowing him to close the argument, instead of the assistant district attorney, or that the attention of the court was called to it in any manner, or that any objection was made to it. Indeed, there is nothing said about it, except a detailed statement of the facts. The statute provides (subdivision 5, sec. 257, p. 115, Crim. Proc. Act 1878) as follows: “When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the prosecuting attorney, or other counsel for the people, must open, and the prosecuting attorney may conclude, the argument.'” By the next section it is provided: “When the state of the pleadings requires it, or in any other case for good reasons, and in the sound discretion of the court, the order of argument prescribed in the last section may be departed from.” . By what is known as the “Poland Act,” the district attorney has charge and control of all prosecutions under the laws of the territory; so, it stands just as though the district attorney was named
This record, at least to my mind, shows that the verdict and judgment is a harsh one. The homicide occurred when all the parties were more or less intoxicated. It was in a difficult}!- then immediately springing up between them over a most trivial matter, and proceeding at once to blows, and from blows to the homicide; the deceased and the prisoner being friends up to that time. From the time when the difficulty first arose to the time of the homicide could not have been more than 10 minutes, and perhaps not more than half that time. If speculations and presumptions are to be indulged' in, the one most reasonable to my mind is that the secret of the
I think the judgment should be reversed, and a new trial ordered.