105 Mich. 568 | Mich. | 1895
Lead Opinion
For a statement of the issue in this case, we refer to 96 Mich. 580, where a brief statement of the case will be found. On the second trial the respondent was again convicted of murder in the second degree.
“Then I understand you, if you were walking along with a gun, and you incidentally saw a revolver discharged in your direction, that you would take your gun, and cock it, and fire right into the crowd?”
One Ruby, a witness for the respondent, testified that the deceased, Albert Palmer, had tried to hire the witness to kill William, the respondent. The story was such as to render a very rigid cross-examination of the witness’ life and character competent. He admitted that he married his wife from a house of prostitution, and the question was then asked,. “Was .she a prostitute?” One other question of a similar character was asked, and both excluded. There was nothing to show that the questions were not asked in good faith, and we do not think they were of such a character as to justify the holding that they prejudiced the jury.
“In determining which of the brothers was the aggressor, you may also take into consideration the testimony tending to show that, on the date of the tragedy, Albert was under the influence of liquor, and that, when under the influence of liquor, he was ugly and nervous and of quick temper, and that the defendant, up to the instant of the shooting, was in his usual frame of mind, pleasant and good-natured.”
The charge is so full and complete, covering every possible ground of defense, that we do not think it was error to refuse this request. Besides, this request was rather in the nature of an argument based upon a portion of the testimony in the case. Undoubtedly, this question was fully argued by counsel to the jury. Such argumentative requests are of doubtful propriety. Peo
“Now, if, after he entered the saloon, he became aware that his brother Albert was there, and he then formed the intent to take hs brother Albert’s life, taking into account whatever may have been in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though hilt a moment before he fired the fatal shot, formed in his mind the purpose of talcing his brother’s life, and pursuant to that purpose he shot and Icilled him, that would constir' tute the crime of murder.”
The precise point urged is that there was no evidence to support such a theory, and that neither the prosecu
“Now, if, after carefully considering all the evidence in the case introduced upon both sides, and after carefully considering all the facts and circumstances surrounding the tragedy, and the relations of the accused and the deceased prior to the tragedy, and taking into account previously uttered threats, if any there were by either, and taking into consideration any quarrels that may have been between the brothers, if any, and also taking into account whether the parties became reconciled and were friends before this fatal day, and whether they were friends, then, I say, taking into consideration all of those facts and circumstances, it would be a subject for the jury to inquire into as to tlm intent with which this act was done, — whether it was an act committed in malice, whether it was an act committed in passion, or whether it was an act committed under the impulse of fear; and if, after a careful examination of all those facts that X have called your attention to, if each juror, looking inito his conscience, could say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt, it would be his duty to convict, because that would be proving the ease by evidence beyond a reasonable doubt, as defined by the law.
“As has been said, the killing may have constituted manslaughter, or it may be entirely excpsable, according to the circumstances, and according to the state of mind with which the act was committed; and the principal inquiry in ihis case must be limited finally to the question of the intent with which this act was done. At the danger of repeating, I say that the prin*575 cipal inquiry in this case must be limited finally to the question.' as to the intent with which William Palmer fired that gun on the day of the shooting. If, at any time before the shot from the revolver was fired, William Palmer had formed the intent and purpose in his own mind, with malice aforethought, to take the life of Albert Palmer, then the mere fact that, while he was engaged in issuing this challenge, his brother, knowing of the danger, was able to first pull a revolver, and to discharge it, would not affect the guilt of the defendant. That implies the forming in his mind, before the firing of the fatal shot, of the intent to take hi® brother’s life; and that would be so because the firing in that case upon his part is immediately connected with the previous malicious and willful intent to take his life; and if Albert, seeing his danger, or knowing that William Palmer was coming in his direction, armed with the fatal weapon, and with the challenge upon his lips, was able first to draw his pistol and fire, that act would not affect the guilt of William Palmer.
“If the jury should find beyond a reasonable doubt that, before he fired the fatal shot, William Palmer had formed a settled,-premeditated, preconceived, or deliberately formed purpose to take his brother’s life, and that in pursuance of that purpose he procured the gun and the cartridges, and loaded the gun, and carried it to the place where the shooting occurred, with the previously formed purpose, with malice aforethought, to there make use of that gun for the purpose of taking his brother’s life, that would constitute' the crime of murder, and you would be justified and it would be your duty to find the respondent guilty of murder in the second degree. Or if you should find the fact tó be beyond a reasonable doubt that in the first intention William Palmer procured this gun for an entirely innocent purpose, and that he loaded it with .an innocent purpose, and intended to go hunting an eagle, as testified to by him, but that any time after procuring the gun, or at any time after entering the saloon, he formed a settled, deliberate purpose and intention, with malice aforethought, to take his brother’s life, by shooting him with that gun, that would constitute the crime of murder; for if, at the time the. shooting occurred, there was present in the mind of William ' Palmer this malicious purpose and intent to take Albert Palmer’s life, then, no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot,-and if it was the actuating, moving cause that impelled him .to fire that shot, and if you believe from the evidence, beyond a reasonable doubt, giving the respondent at all times the benefit of this presumption ' of innocence which I have defined, but, notwithstanding that,'*576 you found him so guilty, it would be your duty to find him guilty of murder in the second degree. In other words, the state of facts I. have defined would constitute the crime of murder, and you would be justified in bringing a verdict of murder in the second degree.
“In the next place, if, after a consideration of all of this evidence, you do- not find from the testimony in this case beyond a reasonable doubt the existence of all the ingredients constituting ' the crime of murder in the second degree, as I have defined it to you, you -should then direct your attention to, the investigation of the evidence in the case to see if a crime of lesser degree had been committed by this respondent, and you should endeavor to ascertain and determine if the crime of manslaughter was committed, for the crime of manslaughter, as before stated and defined to you, is an unlawful and felonious killing of another without malice expressed and implied. When one man suddenly kills another in the heat of passion, but without malice, and without a previously settled and deliberately formed purpose to do so, if no such purpose or -wicked intent existed at the time in his mind, and in the heat of blood, and inflamed with passion, he suddenly strikes the fatal blow or fires the fatal shot which causes the death of another, if the jury should find the existence of such a state of facts beyond a reasonable doubt, they would be justified in finding the accused guilty of the crime of manslaughter. Manslaughter-is perfectly distinguishable from murder, in this: That though the act that causes-death be unlawful or willful, though attended with fatal results, yet malice, either expressed or implied, which is the very essence of murder, is to be presumed to be wanting in manslaughter. ■
“If the jury should reject this evidence, but should find beyond a reasonable doubt, in accordance with the theory of the respondent and his witness, that he procured this gun with the innocent. purpose of hunting near Green Point, or hunting for an eagle that he had ascertained was there, that he did. not know at the time where his brother was, and that there existed at the time in his mind no intent to do his brother fiarm, but- that, pursuant to his purpose to hunt for this eagle, he went to the saloon of Jerry Noel after the rubber boots and the cartridges and some liquor, ■ and that he was intending, as soon as he had performed his errand there, to proceed upon his hunt, let us see what, situation that. would present. That assumed that, at the time he entered that-saloon, there was no criminal intention in his mind. Now; if;: after he entered the saloon, he became aware that liis brother; Albert was there, and he then formed, the. intent to take hlsn brother Albert’s life, taking into account whatever may .have been.*577 in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though but a moment before he fired the fatal shot, formed in his mind the purpose of. taking his brother’s life, and pursuant to that purpose he shot and killed him, that would constitute the crime of murder. If, however, he did not form any such purpose, but if, seeing the other parties in the saloon, he raised the gun in his hand in the spirit of banter only, and said, ‘Where is the man that wants to shoot me? Come up, come up,’ and approached the party, and if, while ^e was doing that in friendliness and in play, he saw his brother, and saw the revolver in his hand, and if that aroused his blood or any rancor that might have existed in his heart or angered him, and in that anger and passion, if he raised his gun and shot his brother, — if you should find the existence of those facts beyond a reasonable doubt, — that would constitute the crime of manslaughter. But if, putting both of those aside, there was no intention in the heart of William Palmer when he entered there to kill his brother, if he was going upon this hunt, and had no thought of malice or ill will towards his brother, and no intent to do him harm, but entered the saloon for the purpose that he said he did, and passed to the opening in. the screen door, and-when he was in front of the door; and but a short distance from the door, if he suddenly saw a hand extended with a revolver pointing towards him, and if at the time he was impelled by fear, and apprehended at the time, as appeared to him, that he was in danger of losing his own life or in danger of great bodily harm, and if he raised his gun under those circumstances, and discharged it, and his brother’s death was caused thereby, that would be excusable homicide; and the matter is to be viewea from the standpoint of William Palmer at that time when he saw that deadly weapon confronting him.
“The jury are to pass on the weight of all the evidence tending to establish any one of these different theories. But, before you can convict the respondent, you must find him guilty beyond a reasonable doubt.”
“Upon an inquiry as to the state of mind, sentiments, or disposition of a person at-any particular period, his declarations and conversations. are admissible.”
, The admission- of the statement of Poquette to the deceased is more doubtful. The general rule is, however, that the entire conversation-is admissible. It all
The judgment is affirmed.
Concurrence Opinion
I concur in the main in what is said in the opinion of Mr. Justice Grant, but I am not able to agree with the proposition that the statement of Poquette, referred to in the sixth subdivision, was admissible as a part of the res gestae. In other respects I think the rights of the respondent were fully protected, and
I am unable to concur with my brethren in the affirmance of the judgment in the present case. It clearly appears that, on the same day and within a few hours of the shooting, deceased had been drinking freely; that he was angry and quarrelsome; that he had procured a revolver and cartridges, had exhibited them to several persons, and threatened to shoot the respondent if he ever ran in his path. The testimony on behalf of respondent tended to show that he had procured the gun for an innocent purpose; that he was sober; had made no threats; that he came into the saloon in his usual spirits, and had exhibited no anger or vicious determination up to the very moment of the shooting; that, before the fatal shot was fired, deceased had drawn his revolver, and had fired one shot at the respondent. Under such circumstances, the instruction referred to in paragraph numbered 5 of the opinion of Mr. Justice Grant was, in my opinion, erroneous. If respondent fired because deceased had first fired upon him, or because deceased had drawn his revolver and had directed it at respondent, the defense would be absolute, although respondent shot to kill. A purpose formed under such conditions does not make the killing felonious. The evidence of the change in respondent’s countenance was that of one Adette, who says:
“The hard expression that I spoke of this morning, on William’s face, did not come until just before he shot. I don’t know whether it was after the revolver was discharged. Albert shot first. He shot at William. It struck William; shot his finger. I testified upon the former trial that the hard expression on William’s face was just at the moment he shot Albert. Albert shot, and he (William) shot right after. I testified upon the former trial that when he pulled the trigger was when his face showed hard.”
The witness did not tell a different story upon the last
The court further instructed the jury as follows:
“Or, if you should find the fact to be beyond a reasonable doubt that in the first intention William Palmer procured this gun for an entirely innocent purpose, and that he loaned it with it an innocent purpose, and intended to go hunting an eagle, as testified to by him, but that any time after procuring the gun, or at any time after entering the saloon, he formed a settled, deliberate purpose and intention, with malice aforethought, to take his brother’s life, by shooting him with that gun, that would constitute the crime of murder; for if, at the time the shooting occurred, there was present in the mind of William Palmer this malicious purpose and intent to take Albert Palmer’s life, then, no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot, and if it was the actuating, moving cause that impelled him to fire that shot, and if you believe from the evidence beyond a reasonable doubt, giving the respondent at all times the benefit of this presumption of innocence which I have defined, but, notwithstanding that, you found him so guilty, it would be your duty to find him guilty of murder in the second degree. In other words, the state of facts I have defined would constitute the crime of murder, and you would be justified in bringing a verdict of murder in the second degree.”
As abstract propositions, these instructions were undoubtedly correct, but it was error to apply them to the circumstances of the "present case. The language “even though but a moment before he fired the fatal shot,” or “if at the time the shooting occurred, * * * no matter how quickly it was formed, or how immediately before the shooting it was formed, if it existed in the mind of William Palmer when he fired that shot,” was especially directed to the moment that the shot was fired, — to a time when, according to the testimony of a
It is true that, in another part of the charge, the jury were instructed that—
“If, putting both of those aside, there was no- intention in the heart of William Palmer when he entered there to kill his brother, if he was going upon this hunt, and had no thought of malice or ill will towards his brother, and no intent to do him harm, but entered the saloon for the purpose that he said he did, and passed to the opening in the screen door, and when he was in front of the door, and but a short distance from the door, if he suddenly saw a hand extended with a revolver pointing towards him, and if at the time he was impelled by fear, and apprehended at the time, as appeared to him, that he was in danger of losing his own life, or in danger of great bodily harm, and if he raised his gun under those circumstances, and discharged it, and his brother’s death was caused thereby, that would be excusable homicide.’
But this is not a question as to the application of different portions of a charge to different aspects of the case,
I think, also, that the questions put to the witness Ruby should not have been allowed. The witness did noi admit that he married his wife from a house of prostitution, but refused to answer the question, and was compelled to by the court. The prosecuting attorney not only persisted in asking the questions, but commented upon the fact to the jury. I cannot subscribe to a rule which permits counsel, upon the ground that it goes to the credibility of the witness, to open up the question as to the character of his wife as to chastity before her marriage with the witness. Aside from all other considerations, a proper respect for the rights of the wife and the marital relation ought to exclude that class of tesimony.
The request referred to in paragraph 3 of the majority opinion should have been given. In the instruction given, no allusion is made to the subject-matter of, the request.
In my view, the respondent should be granted a hew trial.