17 Cal. 389 | Cal. | 1861
Cope, J. concurring.
The main question in this case to which our attention is especially directed, is the charge of the District Judge defining murder in the first degree, and giving a construction to the statute on this subject. The Court told the jury that “ the difference between murder in the first and second degree is so subtle as frequently to puzzle the mind, and render difficult the solution. When the term premeditation or deliberation is used, the juror is apt to consider that some time is necessary for deliberation; but this is not necessary ; it is only requisite that the design to kill has been formed, and it may be executed in a minute, in an hour, or a day, and it is murder; while in all cases of murder in the second degree there must not be any mixture of deliberation, and I cannot more properly illustrate this point than by adopting the language of the Supreme Court of Pennsylvania. The first inquiry, therefore, of a California jury, after a felonious and malicious homicide is established, and not committed by means of poison or lying in wait, is to determine whether the mortal shot was fired with intent to take life, or merely to do bodily harm; if with the intent to take life, it is murder in the first degree; if merely to inflict bodily harm, it is only murder in the second degree. ‘ Let it be supposed that a man without uttering a word should strike another on the head with an ax, it must, on every principle by which we can judge of human actions, be • deemed a premeditated act.’ Again, where one with a loaded pistol takes deliberate aim, and shoots another, it is held to be murder in the first degree.”
The statute (Wood’s Dig.) is, all murder which has been perpetrated by means of poison, lying in wait, torture, or other kind of willful, deliberate and premeditated killing is murder in the first degree; all other kind of murder, is murder in the second degree. It has been supposed and plausibly argued in this State, and in. other States having a similar statute, that the language of the act defining murder in the first degree was designed only to include homicides committed under like circumstances with those given in ! the first clause, as by means of poison, lying in wait, or torture ; |
“ The first inquiry then, in these investigations, is whether the act of homicide was committed with an intention to kill. Nothing affords more conclusive evidence of this bloody intent than the instrument used in the killing. If one man discharges a bullet
“ As to the first, every intentional act is necessarily a willful one. The one implies the other. Deliberation and premeditation mean that the act was done with reflection—was conceived beforehand. No precise time is fixed by law or common sense for this deliberation. If a man has time to deliberate and think—for a minute, as well as an hour or a day—it is sufficient. If a particular time for deliberation or premeditation should be required, at what period ought it to be fixed? No practical answer can be given to the question. Early after the passage of the act of 1794, the construction I have alluded to and explained was given to the act by the highest judicial authorities of the Commonwealth, and it is a binding rule upon us in deciding as to the degree of guilt imputable to any man who is proved to have unlawfully killed another.”
This doctrine was affirmed in Com. v. Murray (2 Ashmead, 43); Com. v. Keeper, (Id. 231). And in Jones’ case (1 Leigh, 609, side) Judge Daniel, delivering the opinion of the Court, says: “To determine whether it be murder in the first or second degree, it is necessary to refer to and consider the provisions of the statute by which the distinction between the first and second degree of murder is created. The statute declares 6 that all murder which shall be perpetrated by means of poison, or by lying in wait, or by duress of imprisonment or confinement, or by starving, or by malicious, willful and excessive whipping, beating or other cruel torture, or by
“ The counsel for the prisoner has supposed, and argued with great ability and ingenuity (as he always does) in support of his supposition, that the words “ any other kind of willful, deliberate or premeditated killing” ought to be construed, and of necessity, as referring to the character or kind of killing or murder specified in the previous enumeration, (by means of poison, lying in wait, duress of imprisonment or confinement, starving, willful, malicious or excessive whipping, beating or other cruel torture) as if it read “ any other kind of such willful, deliberate or premeditated killingbecause otherwise, as he supposes, the preceding particular enumeration would be useless. Now a plain and invincible answer to this argument is presented in the import of the terms used—other and such. Other hilling means any other whatever, which is different from the same; such hilling would- refer to the modes of killing enumerated, and confine itself to the kind of killing enumerated and the means by which it was effected. To admit this construction of the prisoner’s counsel would be to allow that the Legislature meant nothing, or did not understand what it meant, when it used, upon this very important subject of life and death, those words of plain and obvious import: “ Any other kind of willful, deliberate and premeditated killing.” This is what this Court cannot admit. * * “ In all these enumerated cases, the Legislature has declared the law, that the perpetrator shall be guilty of murder in the first degree without further proof that the death was the ultimate result, which the will, deliberation and premeditation of the party accused sought. And the same authority has declared the law that any other kind of killing which is sought by the will, deliberation and premeditation of the party accused, shall also be murder in the first degree ; but that as to this kind of killing, proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused sought. But to this general rule the
In State v. Dunn (18 Missouri, 423) the same question is considered. The Court say: “ The common law implied malice in every unlawful killing, and the burden of proof of extenuating circumstances, unless they arose out of the evidence against the defendant, lay on him. Our act, defining murder in the first degree, is a transcript of the act of 1794 of the State of Pennsylvania. Under that statute it has been held, that unless the circumstances of malice are proved, the law will presume the unlawful killing murder of the second degree. Under the act, the unlawful killing is presumed to be murder, but not murder in the first degree. Whenever it appears from the whole evidence that the crime was, at the moment, deliberately or intentionally executed, the killing is murder in the first degree; as if one, without uttering a word, should strike another on the head with an ax, this would be deemed premeditated violence within our act; it will constitute the offense, if the circumstances of willfulness and deliberation were proven, although they arose and were generated at the period of the transaction. If the party killing had time to think, and did intend to kill, for a minute as well as an hour or a day, it is a deliberate, will
In the People v. Moore (8 Cal. 90) this Court holds that any kind of unlawful, willful and deliberate killing is murder in the first degree.
We have given these extracts and gone at such length into this question, because of its practical importance, and in order that the doctrine may be definitely settled, and be capable of easy comprehension. The whole question may be thus stated: Murder in the first degree consists of a willful, premeditated, unlawful killing; the intent to kill must exist; this intent may be inferred from the circumstances, as the use of a weapon calculated to produce death; this intent need not have existed for any given length of time before the fatal blow; it is sufficient, the killing being unjustified or unexcused by the circumstances, that the intent to kill, if it be formed, be on the instant of killing or doing the act from which the death ensued. In the cases where the killing was done in the perpetration of the felonies, or the attempt to perpetrate the felonies mentioned in the statute, murder in the first degree may be committed, though no intent existed to kill at the time of the fatal blow, as if the criminal shot at the deceased for the purpose of disabling him, or the like.
We see nothing in the other errors assigned for which the judgment should be reversed. Error must be made affirmatively to appear. The mere fact that it is stated generally that the prisoner was absent during a portion of the trial is not enough. Various circumstances might have rendered this absence necessary. It is not shown when, or for what time, or at what part of the proceedings the prisoner was absent. It may have been for a single moment, in passing out of the court house, as his counsel were arguing the case to the Court or the jury, or as suggested, it might have been when the Court was fixing the day for sentence ; and to this idea the record affords some countenance. But in the absence of a statement of the facts, we are unwilling to hold that this general averment is sufficient to justify a reversal of the judgment.
Our conclusion is, that there is no reversible error in the record.
Judgment affirmed, and the Court will appoint a day to carry its sentence into effect.
On petition for rehearing, Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.
Rehearing denied. The statute (Wood’s Dig. 294, sec. 320) does not say that the trial must necessarily be had, during its whole progress, and in every part of it, in the presence of the defendant. The words are: “ If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for a felony, he must be personally present.” We must presume in favor of the regularity of the action of the inferior Court. No statement of facts in connection with this subject is made. The bare fact is noted that the defendant was absent during a portion of the trial. This loose statement, which the Judge should not have made except in connection with the real facts illustrating and explaining it, is all that the record gives us upon this subject. This fact does not necessarily show error injurious to the party, or any error at all. We showed in the opinion that various allowable causes might exist for the momentary absence of the prisoner; and we are to presume from the fact that the prisoner has not explained the facts connected with this statement, that his absence, as stated, was one of these. We are not aware that we have ever decided anything which contravenes the rule now held; and if we had, in this class of cases we should not hesitate to overrule the decision, for upon a mere technical question of imputed irregularity in the