4 Barb. 460 | N.Y. Sup. Ct. | 1848
The prisoner was tried upon an indictment for the murder of Stephen C. Brush, and convicted. His counsel took an exception to the refusal of the judge to charge as re
The judge charged the jury fully upon the law of murder ; and to this part of the charge there is no objection. He then instructed the jury "that if they should not find the prisoner guilty of murder they would next inquire whether the killing was manslaughter, or excusable, or justifiable homicide; and if they should find that Brush first assaulted the prisoner and committed the first battery upon him, and that the prisoner killed Brush in the lawful defence of himself, and that there was reasonable ground for him to apprehend a design, on the part of Brush, to commit a felony upon him, or to do him some great personal injury, and that there was imminent danger of such design being accomplished, the killing would be justifiable homicide: but they should be satisfied from the evidence, and all the circumstances of the transaction, that he really entertained such reasonable apprehension, and that there was great danger in fact of such offence or injury being committed upon the prisoner ; otherwise it would not be justifiable.
The judge then instructed the jury upon the law of manslaughter, and its different degrees. After he had concluded his charge, the counsel for the prisoner requested him to charge the jury :'“that if Brush struck the prisoner the first blow, and the prisoner had no premeditated design to effect the death of Brush, and gave him more blows, and "used more force than was really necessary to his own defence, although he may have been mistaken in believing that there was a reasonable ground to apprehend a design to do the prisoner some great personal injury, and that there was imminent danger of such design being accomplished, if he did not adopt that occasion to gratify his feelings of malice or revenge, although he used a dangerous weapon, the prisoner would be justifiable in killing Brush if he believed himself in such danger. That the question was not if there was danger, but whether the prisoner believed there was.” The judge refused so to instruct the jury; but he instructed them “ that to render such killing justifiable, they should be satisfied that there was in fact imminent danger that
It will not be necessary to criticise the language of the proposition made by the prisoner’s counsel, as the charge of the judge was clear and distinct upon the question, and that was excepted to. If this instruction be erroneous the prisoner should have a new trial. The question is, can the homicide be justified unless there was in fact imminent danger that Brush would commit some great personal injury to the prisoner? or was the prisoner justified in killing him, if there was reasonable ground to apprehend a design on the part of Brush to do him some great personal injury, and he believed there was in fact imminent danger that such injury would be inflicted 7
Before proceeding to consider this question it will be well to advert to the provisions of the revised statute in relation to justifiable homicide. The statute specifies the cases of justifiable homicide. (2 R. S. 660, § 3.) By the 2d subdivision of that section, the homicide is justifiable “ when committed in the lawful defence of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished.”
The charge is very nearly in the language of this section. It is argued however, that if the prisoner did apprehend a design on the part of Brush to do him some great personal injury, and believed he was in great danger, he had then a right to act upon that belief, and take the life of Brush, although there was no actual imminent danger. In other words, if he believed in the danger he had a right to act as though the danger was actually present, and the injury about to be inflicted upon him, and that the consequence of this mistaken belief must fall upon the deceased, and the prisoner must in the eye of the law, stand entirely justified.
Several particulars are to be noticed in this section, as applicable to the present case. The homicide, if justifiable,, must
The statute also adds this farther condition : “ And there shall be imminent danger of such design being accomplished.” The language is here changed. The question no longer depends upon reasonable grounds to apprehend imminent danger, from which a belief may be formed. It is, to my mind, clear and explicit, and requires that there should be imminent danger of the commission of a felony, or of some great personal injury.
The man assaulted may have reasonable ground to apprehend a design on the part of his assailant to do him some great personal injury, and yet there may in fact be little or no danger of the accomplishment of the design. Suppose the party committing the assault is unarmed, and weak, and infirm as compared with the party assaulted, and this disparity of strength is such that the party assaulted is able to protect his person from injury. The imminent danger of accomplishing the design would not exist, and yet the design may have been
Suppose a case where there were appearances of imminent danger, and the party believing himself in imminent danger, kills, would he be justifiable if the danger did not exist? If so, the issue on the trial would be, first as to the appearances of danger, and secondly, whether the party killing acted upon an honest belief of imminent danger; not was there in fact imminent danger. The statute has established the rules by which to test the justification, and they are, as I understand, in accordance with the common law. What is meant in the statute by “ such design ?” Does this language imply that a design to commit a felony, or to do some great personal injury, had been actually formed ? If so, then a reasonable ground to apprehend a design, &c. as declared in a previous part of the section, is not sufficient, but there must be added to it not only the imminent danger but the actual design. This is not the true construction of the language. If there is a reasonable ground to apprehend the design, and there is imminent danger that such apprehended design will be accomplished, it is sufficient. The party assailed may have reasonable ground to apprehend a design on the part of the assailant to kill him, and he may be in imminent danger, from the acts of the assailant, of being killed, and yet his assailant may not have formed the design to kill or to do him great personal injury. His acts may however be such as actually to put the life of the person assailed in imminent danger. In such a case the killing would be justifiable.
This construction of the statute is, in my mind, confirmed by a reference to the common law upon the question now under consideration. A full discussion of the question would lead to an examination of the law of homicide generally ; but it will only be necessary now to state the distinction between murder, manslaughter, and excusable and justifiable homicide. Murder is the killing of any person with malice prepense or aforethought. The grand criterion by which murder is dis
In manslaughter malice is wanting. In excusable homicide, the person by whom it is committed is not. altogether free from blame. Russell divides this into homicide by misadventure and in self defence. The latter, he says, is when one kills another in defence of himself or property upon some sudden affray, considered by the law as in some measure blamable and barely excusable. When a man is assaulted in the course of a sudden brawl or quarrel, he may, in some cases, protect himself by killing the person who assaulted him, and excuse himself on the ground of self defence. But to entitle himself to this plea, he must make it appear, first, that before a mortal stroke was given he had declined any farther combat: Secondly, that he then killed his adversary through mere necessity, in order to avoid immediate death. Under such circumstances, it will be' excusable self defence. Mr. Russell says this species of homicide borders very nearly upon manslaughter; that the boundaries between them are in some instances scarcely perceivable. The true criterion between them is stated to be this: when both parties are actually combatting at the time the mortal stroke is given, the slayer is guilty of manslaughter; but. if the
In Regina v. Smith, (8 Car. & P. 160,) the prisoner was indicted for murder and also for manslaughter. He, the deceased, and other persons, had been drinking at an inn where the deceased struck the prisoner. Some time after, the prisoner and his brother went out, and’the deceased soon after followed, and overtook the prisoner; a fight ensued and he was killed by stabs inflicted with a bayonet, which belonged to the brother of the prisoner, who was a witness, and stated that the deceased overtook him, knocked him down, and took the bayonet and pursued the prisoner, and on overtaking him, a fight ensued, and a great struggle between them, when the deceased cried out, “ I am stabbed, I am stabbed.” The judge instructed the jury to inquire whether the prisoner was guilty of murder or of manslaughter, or whether his act was justifiable or
This language is evidently well considered. The prisoner was not allowed to justify himself under an apprehension of serious bodily harm, but he was only to be justified when his act was necessary to protect himself from such serious bodily harm as would give a reasonable apprehension that his life was in imminent danger. The imminent danger of bodily harm must have been present, actually existing, and to a degree that would create reasonable apprehension of danger to life.
In Regina v. Bull, (9 C. & P. 22,) it was insisted that the homicide was justifiable in preventing a robbery on the highway. Vaughan instructed the jury “ that it was not justifiable homicide unless there was an intention on the part of the deceased and his companions to rob or murder the prisoner, or to do same dreadful bodily injury to him, and that it was not the law that a man would be justified in taking away the life of another merely because he feared that he might be assaulted, or indeed if he was actually assaulted.” His lordship told the jury that “ the question for their consideration was whether the conduct of the party made it necessary for the prisoner to inflict that blow, which almost immediately terminated in the death of the deceased; whether he inflicted the wound in self defence
In the United States v. Wittberger, (3 Wash. C. C. R. 521,) Justice Washington states the law of justifiable homicide thus; “A man may oppose force to force in defence of his person, his family or property, against one who manifestly endeavors by surprise or violence to commit a felony, as murder, robbery, or the like.” He says, “ The intent must be to commit a felony. The intent must be apparent which will be sufficient, though it should afterwards turn out that the real intention was less criminal, or was even innocent. This apparent intent is to be collected from the attending circumstances, such as the manner of the assault, the nature of the weapon used and the like.” He is here speaking of the apparent intent of the assailant whose life shall have been taken ; and t,he»rule laid down is like that in our own statute, viz: “ when there shall be reasonable ground to apprehend a design,” &c. I have already shown that it is not necessary to establish this design on the part of the person killed, but only that there was reasonable ground to apprehend the design. Judge Washington adds, “and lastly, to produce this justification, it must appear that the danger was imminent, and the species of resistance used necessary to avert it.” “ It must appear,” <fcc. that is, it must appear on the trial, from the evidence, that the danger was imminent. This charge is in accordance with the law as established by our statute. It was taken from the common law. All these cases show clearly that there must have been imminent danger, either of death or some great bodily harm ; and this must be shown to the satisfaction of the jury. I am satisfied that the legislature considered the common law carefully, and that they adopted it, in the section relating to justifiable homicide, and that they have thereby provided that a homicide shall not be justifiable unless there was, first, reasonable ground to apprehend a design to commit a felony, or to do some great personal injury ; and, secondly, there was imminent danger of such apprehended design being accomplished ; that is, that there was imminent danger that a felony would in fact be committed, or
If the prisoner acted under an honest belief that he was in imminent danger of some great personal injury or of death, and that it was necessary for him to take the life of the deceased to avoid the danger, this wbuld repel all presumption of malice, and reduce the homicide to the degree of manslaughter, probably the lowest under the 19th section of the act; the punishment for which may be imprisonment in a state prison for two years, or in a county jail not exceeding a year, or by a fine or both. (See Justice Cowen's opinion in People v. Rector, 19 Wend. 590.)
Malice is always the test between murder and manslaughter ; without malice, express or implied, there can be no murder, and with malice the homicide will be murder. It is therefore always important to inquire with what motive the prisoner acted. If he acted purely from fear, or from a belief that the act was necessary to save himself from death or great personal injury, then he will have acted without malice, and, though mistaken, will not be guilty of murder, but of manslaughter.
Hoyt, J. concurred in the opinion of Justice Marvin.
It appears by the bill of exceptions in this case that, after the judge who presided at the trial had concluded his charge to the jury, no part of which was excepted to on the part of the prisoner, the prisoner’s counsel requested the judge to charge the jury, in substance, that if Brush struck the first blow, and the prisoner had no premeditated design to effect the death of Brush, and did not adopt that occasion to gratify feelings of malice or revenge, although he used more blows and more force than were really necessary to his defence, and used a dangerous weapon, and was mistaken in believing there was reasonable ground to apprehend a design to do him some great
As the trial of this cause appears to have involved the whole doctrine of homicide, and to have presented questions under the several classes into which homicide is divided, a brief recurrence to the qualities or characteristics which distinguish the several sorts of homicide from each other, may not be altogether useless in the examination of the subject before us. Homicide, or mankilling, may be divided into criminal, justifiable and excusable. The terms used to designate the last two classes sufficiently explain themselves» Criminal homicide is divided into murder and manslaughter. Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought, in this definition, is not confined in its meaning, to long cherished malevolence, grudge or hate, as the term is sometimes used, but has a broader signification and includes depraved or malignant intention or design, formed under the influence of the reasoning faculties. Judgment, instead of impulse, no matter how recently formed.
Manslaughter is the unlawful killing of a human being without malice. The distinction between murder and manslaughter is not involved in the question whether the act which occasioned the death, was intentional or not, but in the question whether the death was the designed object of the act, or the uncontemplated result of an act, prompted by impetuous and blind passion. This distinction gives occasion for proof of provocation. Provocation is that which provokes or excites passion. The proof of provocation is applicable to the question whether the billing was the result of suddenly and strongly provoked or excited passion, or of reflection, reasoning
New trial denied.