13 Mont. 160 | Mont. | 1893
On the third day of December, 1892, the appellant was convicted of the crime of murder in the first degree, and on the tenth day of the same month the judgment of the lower court was rendered that the appellant be hanged on a day therein named. The appellant moved for a new trial. The motion was denied. From the order overruling said motion, as well as the judgment of the court, this appeal is prosecuted.
The principal error assigned is as follows: “That the court, by instructions, authorized the jury to find the defendant guilty of murder in the first degree or manslaughter, aud did not sufficiently or at all define murder in the second degree in his instructions.” From an inspection of the record, it appears that the court below in its instructions defined murder in the first degree and manslaughter, the only definition of murder in the second degree being found in these words of the statute, attached to the definition of murder in the first degree, to wit: “All other kinds of murder shall be deemed murder in the second degree”; and, without any other definition of murder
The question for this court to determine is, whether this was a sufficient definition of murder in the second degree to enable the jury to determine the essential characteristics of this degree of homicide. It was the duty of the court to so fully declare the law by its instructions upon every degree of crime of which the appellant could be convicted under the information, as to give him the benefit of having the evidence considered by the jury, under a full knowledge of all the essential elements of each degree of crime for which a verdict could be rendered against him. We think the authorities are substantially uniform upon this subject. This doctrine is fully and forcibly discussed in State v. Meyer, 58 Vt. 457, under a statute like ours, in which case the court says: “ The reading of the statute, declaring what was murder in the first degree, and that all other kinds of murder shall be murder of the second degree, was not a sufficient explanation of the two degrees. The jury, from that reading, without explanation, would have no appreciation of the distinguishing characteristics of the two degrees, which have confessedly been something of a puzzle to lawyers and judges. How many would understand from the reading of the statute defining the first degree of murder and the phrase, ‘All other kinds of murder shall be murder of the second degree,’ what in fact constituted murder iu the second degree? How many men not read in the law would understand from it that murder in the second degree is the unlawful killing of a human being with malice aforethought, but without deliberation, premeditation, or preconcerted design to' kill, and that the distinguishing feature of the two degrees rests in the absence of deliberation, premeditation, and preconcerted design from the second degree”? This case is exactly like the one under discussion. In both cases the trial court read the statutes defining the different degrees of homicide, or copied them into their instructions verbatim. The reasoning in State v. Meyer, supra, seems so convincing and con-
Instruction 16, given by the court, is as follows: “If the jury, from the evidence in this case, believe, beyond a reasonable doubt, that the defendant, at or about the time charged in the information, killed Austin McDonald at and within the county of Custer, then it will devolve upon the jury, under the evidence, to determine what degree of offense such killing constituted; and if the jury believe from the evidence that the defendant had been injured or received provocation from the person killed, whatever that injury or provocation might have been, yet if, after receiving such injury or provocation, there should have been an interval between the provocation given
Reversed.
