25 Cal. 361 | Cal. | 1864
The defendant was indicted for the murder of Tim Malony. Both the defendant and the deceased were drunk when the homicide was committed. Under our law drunkenness is no • excuse for crime, unless it he occasioned by the fraud, contrivance or force of some other person or persons for the purpose of causing the perpetration of an offense. The homicide was caused by the defendant, who used a knife from the “ cupboard,” as one witness testified, with which he stabbed the deceased in a vital part of his body, so that he died within a very short time afterward. At the trial the defendant was found guilty of murder in the second degree, and was sentenced by the Court to be imprisoned in the State Prison for the term of fifteen years. The defendant has appealed to this Court from the judgment.
The Court below, in charging the jury, said: “In murder of the second degree malice may be shown, and the law, in case a killing has been proved, will imply malice, unless extenuating circumstances are shown; but although the law implies malice from the killing alone, yet there must be no mixture of deliberation or premeditation in the act of killing, and there must be no intent to kill in giving the fatal blow, otherwise the crime would be murder in the first degree.”
The counsel for the defendant requested the Court to instruct the jury in the following words : “ That the difference under our statute between murder in the first and second degrees does not consist in the degree of malice necessary to effect the killing, since in each case malice accomplishes its wicked purpose 5 but the difference consists in the amount or degree of deliberation beforehand with which the malice effects its fell purpose. The same kind or quality of malice is requisite in each case ; but the less degree or amount of cool deliberation
The Court refused to so instruct the jury, and the defendant excepted; and the defendant also excepted to the instruction given by the Court above set forth, and now seeks to reverse the judgment because of these alleged errors of the Co.urt below.
The statute defines murder to be the unlawful killing of a human being, with malice aforethought, either express or implied. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart. These are statutory definitions. (Wood’s Digest, 330, 331, Secs. 19, 20, 21.) The twenty-first section of the Act concerning crimes and punishments has divided the crime of murder into two classes—murder in the first degree and murder in the second degree. The statute declares that “ all murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree.”
The statutory definition of murder is substantially in the language of the common law defining that term, and the classification of murders of different degrees of atrocity, into two kinds, doee not render the lesser crime any other than murder; and if the homicide committed be murder, it is for the jury,
There is no complaint that the Court, incorrectly charged the jury as to what constitutes murder in the first degree, or when a homicide amounts to manslaughter, or is justifiable or excusable; but the chief ground on which the counsel for the defendant places his objection to the charge is that the jury were instructed in substance that premeditation, deliberation, or intention to kill in giving the fatal blow, were not essential to constitute the homicide minder in the second degree, and that, therefore, the jury may have found the defendant guilty of murder in the second degree, when they would not have done so had they been correctly instructed as to the law on the subject.
It is a cardinal doctrine of criminal law, founded in natural justice, that it is the intention with which an act was done that constitutes its criminality. The intent and act must both concur to constitute the crime. (3 Greenleaf’s Evidence, Sec. 13; 1 Bish. Crim. Law, Secs. 80 and 253.') The felonious intent may be proved directly, or it may be presumed from the proved existence of other facts. (3 Greenleaf’s Evidence, Sec. 14.) Nothing short of an intent to do a forbidden thing, will make a person a criminal in law; but it is not necessary that the interdicted thing actually done, should have been designed, but it must appear that such result was attained in the attempt to do an unlawful act.
The common law measures an act which is malum in se substantially by the result produced, though not contemplated, holding the doer of the act guilty of the thing done in the same manner as if it were specially intended, though not always guilty of the crime committed in the same degree. (Rutherford’s Institutes, B. 1, C. 18, sec. 11.) On this principle, if one intending to murder a particular person attempts to shoot him, but, missing his mark, shoots another; or" in an attempt to poison one, another accidentally loses his life by means of it, it is murder in the first degree. (1 Bishop on Crim. Law, sections 255-257.)
,It does not follow, from the language which we have quoted from the decision in Commonwealth v. Green, and adopted in The People v. Bealoba, that criminal intent is not an element in the crime of murder in the second degree. In those cases, “ the clear intent to take life constituting the killing, murder in the first degree” was evidently intended to mean the deliberate and fixed purpose existing in the mind of the slayer to kill the object of his malice, as contradistinguished from that minor quality of intention which lacks the marked and distinguishing characteristic of deliberation or cold premeditation, and such was the manifest sense of the charge of the Court to which the defendant objects; for, immediately following the language of the charge to which the exception is taken, the Judge illustrates his meaning by an example, saying; “A man actuated by malice may attack another with the intention of not killing,' but of committing some bodily injury; here, though death ensued, the crime would be murder in the second degree; because, although there was malice in the act, the killing was not premeditated, nor done with deliberation, nor was there any intent to kill in giving the mortal blow.”
The commission of murder, as we have already seen, neces
Then viewing the charge in its plain meaning, as it must have been understood by a sensible jury, we are of the opinion . the defendant had no ground to complain of it as erroneous. If we had any doubt upon the subject we should not hesitate to reverse the judgment.
In respect to the defendant’s second assignment of error, we
We are of the opinion the judgment should be affirmed.
Judgment affirmed.