State v. BrownState v. Brown
Defendant appeals from conviction of second degree murder. He was jointly indicted with Roger Allen Shirley for the homicide of one Tucker. ①
The evidence was that Tucker had taken a Mercury automobile and five baggies of heroin belonging to defendant Brown and had not returned them or money for them to Brown; that Brown was looking for Tucker and according to two witnesses, “he said that if he saw Bruce Tucker he would have to kill him” and “He said once or twice, maybe, if he got his hands on him [Tucker] he’d kill him.” They testified that Brown had a gun with him, and, acсompanied by Shirley, went looking for Tucker. When Brown found Tucker, a witness who was then present testified that Brown fоrced Tucker into a chair and with a small automatic pistol which he had cupped in his hand struck Tucker on the head twice. With the second blow the gun fired and Tucker slumped to the floor, his breath diminished, and Brown and Shirley dеparted.
Asserted errors are: (1) that a motion taking from the jury’s consideration second degree murder should have been allowed; (2) that a motion for a directed verdict should have been allowed; (3) the statutory definition of the word “malice” used in an instruction was wrong, and (4) that an instruction that less than an unanimous verdict could be returned was incorrect. The latter asserted error is rejected on authority of
State v. Gann,
The defendant mоved to take second degree murder from jury consideration because, he asserted, there was nо proof of malice or purposefulness in the killing. Defendant relies upon
State v. Davis,
The facts upon which the second assignment of error is based are that the viсtim was taken to a hospital and kept alive by an artificial respiration machine wMch, until it was turned off, kеpt him breathing and his blood circulating. Defendant contends that turning the machine off was the act which terminated Tucker’s life rather than the bullet wound. This contention is completely refuted by the testimony of Richard V. Crisera, M. D., who was in attendance at the time of Tucker’s death and performed an autopsy upon him. This testimony was:
“Q. Did you determine what the cause of death was from your examination of the body?
“A. Yes.
“Q. Would you tell the jury what actually caused death?
“A. In my opinion the cause of death was a gunshot wound of the head with resultant damage to the brain which resultedin damage to the vital cеnters of the brain which control respiration and other body activities.
“Q. What type of damage did the — did the gunshоt wound cause?
“A. The gunshot wound penetrated the sldn of the scalp, passed through the skull on the left side, pаssed through both cerebral hemispheres, both sides of the brain, passed through the skull on the other side of the hеad and came to rest in the tissue beneath the sldn on the right side * *
Defendant asserts that Tucker’s life could havе been extended “indefinitely.” The above quotation is evidence to the contrary.
The court in its instructions said:
“* * * There must be some еvidence of malice other than the mere proof of the killing to constitute murder in the second degree * * *.
“The words malice and maliciously are used in the broad legal sense of criminal intention to define thаt state of mind of a person who does a wrongful act intentionally or wilfully and without legal justification or excuse and does not necessarily mean spite or hatred toward the other, but it does import a wish to injure, vex, or annoy another established by either proof or presumption of law.” (Emphasis supplied.)
The emphasized words are taken from OES 161.010, which says this statement, among many others, relates to criminal procedure and crimes “unless thе context requires otherwise.” In
State v. Smith,
In Smith we held that the context of the case did not rеquire a definition of “malice” because there the defendant was involved in an armed robbery of deсeased when the shooting occurred and that the robbery was malicious per se. In the case at bаr, it was undisputed that the defendant intentionally struck Tucker on the head two times with a pistol. The doctor testified that there were marks on Tucker’s head which were not attributable to the shooting and which could only he аttributed to being struck on the head with something like the pistol. Thus, from uncontradicted testimony the jury could only infer that dеfendant intended, at the least, to injure Tucker. There is no basis upon which it could infer an intention only to vex аnd annoy him without malice.
We conclude that the error in using the surplus words in the statutory definition of malice was harmless.
Affirmed.
Notes
The opinion on appeal of Roger Allen Shirley from conviction under the joint indictment is reported in State v. Shirley,