149 Minn. 195 | Minn. | 1921
The defendant was indicted for murder in the first degree for the killing of one Jack Eegan on August 23, 1919. He was convicted of manslaughter in the first degree and appeals.
The defendant requested the court to submit manslaughter in the second degree. The court refused. The question is whether in refusing it erred.
The-court, in addition to murder in the first degree and in the second
The evidence was such as to justify a finding that Regan and Rennes were the aggressors and that the defendant did nothing more than reasonably repel their attacks, and in doing so pushed or threw Regan against or over the banister; or that he fell over the banister not as an immediate effect of the defendant’s blow. Such a finding would relieve .the defendant of criminal responsibility and a verdict of not guilty would necessarily result.
The evidence was such as to justify a finding that in the heat of passion engendered in the quarrel the defendant wrongfully and not in his own protection or in repelling an attack, intentionally and knowing the situation threw Regan over the banister to the landing. Such a finding would result in a verdict of manslaughter in the first degree. That a killing by purposely throwing one from the landing on the third floor to the landing on the first floor, a distance of 28 feet, though without an intent to kill, would be a killing in a “cruel and unusual manner,” an-inherent element of manslaughter in the first degree, seems clear enough. What constitutes cruel or unusual manner or means within the meaning of the statute is suggested by the supreme court of Kansas, in considering second degree manslaughter which corresponds to our first degree, as follows: “It must be said, therefore, that in order to constitute manslaughter in the second degree there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to malee it especially shocking; and the unusual character of the manner displayed must stand out sufficiently peculiar and unique to create surprise and astonishment, and- to be capable of discrimination as rare and strange.” State v. Knoll, 72 Kan. 237, 83 Pac. 622. And see State v. Wilson, 98 Mo. 440, 11 S. W. 985; Schlect v. State, 75 Wis. 486, 44 N. W. 509.
It was error not to submit manslaughter in the second degree.
In view of a new trial it may be suggested with propriety that the evidence fails to show by the degree of proof required either murder in the first or in the second degree.
Order reversed.