State v. Bradley
64 Vt. 466
Vt.
1892
Check Treatment

The opinion of the court was delivered by

ROSS, Ch. J.

I. On trial, the witness Oole, after having testified that soon after the homicide, Bolger, who was present at the time of the homicide, would speak out and say that Bradley, the respondent, killed the woman, — was asked, against the exception of the respondent, “ what was his appearance then ? ” lie answered first “ It kinder seemed as though he didn’t want it laid to him,” and again, “ He seemed kinder worried that it should be laid to him, and would turn it off in this way, that she died of heart disease; he said that she had it and he had rubbed her an hour at a time and fetched her out óf it and so on.” Witness was not an expert. It is contended that the question called upon the witness to give his opinion in regard to the appearance of the respondent. Whether the question called upon the witness to give his opinion, or to describe the appearance of Bolger it' was admissible under our decisions. State v. Ward, 61 Vt. 153; Bates v. Sharon, 45 Vt. 474; Crane v. Northfield, 33 Vt. 124; Stowe v. Bishop, 58 Vt. 500; Knight v. Smythe, 57 Vt. 529.

Nor do we think the answers objectionable if a departure from the question. It was that the respondent appeared kinder worried, and the witness gave his reason, that the respondent sought to avoid the charge by falsely claiming that the deceased came to her death from a disease of her heart rather than by a stab in the breast. The answer was more a statement of an admissible fact than of the opinion of the witness. It is always permissible to show that the accused when charged with the commission of a crime denied the charge, by asserting a falsehood.

II. The conditional threats of the respondent to take the life of the deceased, proof tending to show that the condition *471liad transpired having been introduced, — was properly admitted. The fact that the threats were made six or eight months before the homicide went, not to the admissibility, but to the weight which the jury should give to such threats.

■ III. The respondent excepted to the charge as to what the jury must find relative to suicide and to the charge upon that subject. It is not now contended that the charge was erroneous so far as it was given, but it is contended there was error in the failure to charge that if the evidence of suicide was sufficient to raise a reasonable doubt whether the crime of manslaughter or murder had been committed, the respondent was entitled to the benefit of that doubt. . The exception taken, does not call the attention of the Court to any failure to charge, nor point out any such failure. It only drew the attention of the Court to the charge given on this subject. Hence the exception does not raise the error now insisted upon. If the attention of the Court had been called to the error now contended for, the Court, doubtless, would have corrected the claimed omission,- unless in other portions of the charge the Court had given the respondent the benefit of such doubt,, however raised. The case naturally r equired the Court to charge that to convict of any crime the evidence must establish that crime beyond a reasonable doubt. Such a charge would give the respondent the full benefit of the claimed omission. With only a brief extract of the charge given and with the case calling upon the Court to charge fully upon the subject of the claimed omission, it will be presumed that the Court gave the required charge which would supply the claimed omission. This exception is not sustained.

IY. The respondent excepted to the charge defining murder in the second degree, and especially that the element of premeditation and malice must both be wanting to distinguish the crime from murder in the first degree. The scope of this exception is that the Court’s definition of murder in the second degree was erroneous. After telling the jury, that to constitute murder *472in the first degree, the killing must have been wilful, malicious and premeditated, the Court told the jury that in murder in the second degree the elements of premeditation and malice are wanting. This statement of what constitutes murder in the second degree was, in substance, repeated two or three times. It is not contended but that this definition was erroneous, in that it told the jury that the element of malice was wanting in murder in the second degree. Its error is fully demonstrated in State v. Meyer, 58 Vt. 457. Murder in the second degree is there defined to be “the unlawful killing of a human being with malice aforethought, but without deliberation, premeditation or' preconcerted design to kill.” From the charge as given it is difficult to comprehend, on evidence sufficient to establish only manslaughter, why the jury must not have convicted of murder in the second degree, the crime found by the verdict of the jury. But it is contended, for the State, that this error1, in defining murder in the second degree, must have been cured, because it is stated, that the Court instructed the jury that under the indictment the respondent might be convicted of manslaughter and correctly defined the crime of manslaughter. The language in which the Court defined manslaughter is not given. If it was the same used in defining murder in the second degree, it left the jury free to convict of either crime, as they might judge best. If the language used in defining manslaughter was different from that used in defining murder in the second degree, although the language used in defining each was of the same legal significance, the jury thereby might have been misled to the injury of the respondent. The charge defining murder in the second degree being erroneous in not requiring full proof of all which is necessary to establish the crime of which the respondent was found guilty, the charge must be held both erroneous, and injurious to the respondent unless the exceptions clearly show that he could receive no injury from the error. This, the exceptions do not show.

*473 Exceptions sustained, sentence, judgment and verdict set aside, a new trial granted, and cause remanded.