100 Mich. 518 | Mich. | 1894
The respondent was convicted of murder in the first degree, upon a trial. The victim was his own child, and respondent testified that he accidently shot the child in attempting to shoot one Eobinson, of whom he was jealous, and who at the time ivas a boarder in the house, and whpm respondent supposed to be intimate with his wife. He further stated that he obtained the weapon some hours before, for the purpose of shooting him the first time that he crossed his path. He did not '’state that he intended to kill Eobinson. It further appeared from his testimony that the shooting was preceded b3r an altercation between the two men.
The’ respondent's wife was called on behalf of the prosecution, and testified, against objection, to the circumstances of the shooting. This is alleged as error, and this contention is in accord with the settled rule in this State. The court admitted the testimony on a mistaken construction of section 7543 of Howell's Statutes. This section was passed in 1861, and removed the disabilities of parties to actions, and their connubial partners, to testify, which under previous statutes was not permitted. See Comp. Laws 1857, § 4339. Under the amendatory section (i. e., 7543), there is no doubt that Mrs. Gordon was a competent witness for or against her husband loiih Ms consent, but without it her testimony was as clearly inadmissible, under How. Stat. § 7546. This section has been construed in various cases cited in the notes to the section,
This should dispose of the case were it not for the testimony of the respondent himself, which is said to conclusively show his guilt, and therefore to render the error one without injury. lie admits that he procured a revolver for the purpose of shooting Eobinson, and that he did shoot him, after becoming enraged in a controversy with him. Had he billed-him, and the prosecution been upon the charge of murdering him, the degree of the offense would have been for the jury, who, under the evidence, might have found' him guilty of murder in the second degree or manslaughter, and in such case the cause would have to be reversed for the error mentioned; and, as'it was, the prisoner was entitled to have the degree of the offense, to say the least, determined by the jury, upon competent evidence. It was for the jury to say whether there was an attempt to kill Eobinson. The respondent said he bought the pistol to shoot him under certain circumstances, not to kill him. He did not shoot him on sight, but only after a quarrel. Hence it does not appear, as matter of law, that the child was killed in the attempt to take the life of another under circumstances that would have made such killing murder in the first degree.
Under the rule that “if a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder,” such homicide might or might not be murder in the first degree (see How. Stat § 9075); and in the present case that would be a question for the jury, if, indeed, it cannot be said that it could not be murder in-the first degree, because not within the language of that section. We cannot say, then, that the testimony was equivalent to a plea of guilty of murder, upon which the
The judgment must be reversed, and a new trial ordered.
