From a careful reading of the evidence as embodied in the bill of exceptions, we have reached the conclusion that it is sufficient to support the verdict of the jury-
That the prisoner shot and killed the deсeased without any just cause or provocation is placed beyond all question. Therefore, if the act of shooting was voluntary, as it must be presumed in law to have been in the absence of proof tо the contrary, it was, necessarily, unlawful. And, under these circumstances, the act was also malicious, for the rule is that if a man kill another without considérable provocation the law implies malice, for no' persоn, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. 2 Broom & Hadley Com., 484 (Am. Ed.) And in addition to its being unlawful and malicious, to make the act of killing murder in the first degree, it is only neсessary to establish that it was done with deliberation and premeditation, of which there was some evidence in the previous acts of the prisoner on the day of the homicide, among which is the important onе of borrowing and arming himself with a revolver
The record shows that on the conclusiоn of the cross-examination of Dr. Paine, a witness called on the part of the state, he was re-examined by the district attorney as to the extent of the wound upon the body of the deceased, of which he had given a general description in his direct examination. The witness being asked to give the diameter of the wound as nearly as he could, this was objected to on the ground that it was not a proper re-examinatiоn of the witness, inasmuch as it did not relate to any matter called out on the cross-examination. The general rule on this subject is, as claimed by counsel for the prisoner, that the re-examination should be limited to the points arising out of the cross-examination. But while this is the rule usually observed by courts, it seems to rest “ entirely in the discretion of the judge whether it ought to be strictly enforced or remitted as he may think best for the discovery of truth, аnd the administration of justice.” 2 Phillips on Evidence, 912.
Dr. Gilbert, one of the witnesses for the prosecution, in explaining to the jury the comparative size of a bullet, said to have been taken from the body of the decеased, and the wound of which she died, having testified that “the wound looked smaller than the
Again, it was contended in argument that the court erred in not restricting the cross-еxamination of the witness Kluetsch, by the district attorney, “to the facts and circumstances drawn out on his direct examination.” While the rule governing the cross-examination of witnesses is as claimed by counsel for the prisoner, the record shows that its violation was not the ground of complaint in the court below. The only objections there made were that the testimony was “ irrelevant and immaterial.” The testimony referred to may have been open to the technical objection made here, but it most certainly was not to those brought to the attention of the trial court. This being a court for the correction of errors, our examinatiоn of questions relating to the evidence is confined to such as were distinctly raised and passed upon" in the court whose record is under review.
The defense of insanity being interposed, and sev
In Grant v. Thompson,
And while on this branch of the case we desire to add that, although this defense of insanity was probably made in good faith, it does not seem to have anything substantial to rest upon. The evidenсe falls very far short of establishing its existence. That the prisoner was considerably intoxicated, and his mind somewhat clouded in consequence thereof, are doubtless true. But the fact that he was in a drunken state does not of itself render the act of shooting the deceased any the less criminal, nor is it available as an excuse. If, notwithstanding his intoxication, he were conscious that the act was wrong, he was a responsible agent, and answerable for all the consequences. In charging upon this point the judge told the jury, in substance, that they were at liberty to take the fact of intoxication as a circumstance to show that thе act of killing was not deliberate and premeditated. This was right, and suggested to the jury the full extent of the effect that might legitimately be given to it. People v. Rogers,
Several of the instructions given to the jury are also made the basis of allegеd errors, but we fail to perceive any just ground for the complaint made in this particular. The instruction most complained of was given at the request of the district attorney, and was in these words: “ That settled insanity produced by intoxication affects the responsibility in the same way as insanity produced by any other cause. But insanity immediately produced by intoxication does not destroy responsibility when the patient, when sane and responsible, made himself voluntarily intoxicated.”
In the case of State v. Hundley,
The only substantial difference between the law as thus pronounced and the instruction complained of is in the omission from the latter of the qualifying clause limiting responsibility to cases of temporary insanity or frenzy. But while, under different circumstances, this omission might have been a serious matter, it certainly was of no cоnsequence under the testimony in this case. There was not a syllable, of evidence of the existence of settled insanity. The utmost that was claimed, or that there was the least testimony to establish, was a mere temporary frenzy or condition of irresponsibility on the part of the prisoner. There is, therefore in this matter, no ground for complaint. .
Error is also alleged because of the refusal of the court to give several instructions to the jury requested on behalf of the prisoner. By the first of these it was sought to make his voluntary intoxication under certain circumstances a complete excuse for the homicide. There was no error in this refusal, for the court, as we have seen had already charged upon this point, and laid down the law correctly, recognizing the “well known and salutary maxim of our laws, that crimes
In conclusion we think the law of the case, so far as our attention has been called to it, was very fairly given to the jury, and that notwithstanding the errors assigned, and relied upon, the judgment should be affirmed.
Judgment affirmed.