127 P. 275 | Utah | 1912
Lead Opinion
Defendant was convicted of first degree murder, sentenced to life imprisonment, and' appeals. The principal questions relate to the court’s charge.
The defendant is about twenty-seven years of age. At the time of the homicide he was in the employ of the Pinkerton Agency as a detective. He had been married three or four years. For a year or more prior to the homicide, he and his wife had considerable trouble and numerous quarrels, chiefly on account of attentions the defendant claimed other men gave his wife. They roomed at hotels and apartments, separated several times, reunited, and again separated. A day or two before the homicide, the defendant attempted another reconciliation. She refused to longer live with him, and took rooms at a hotel separate and apart from him. On the night of the homicide, he, after midnight, entered his wife’s room, and, as shown by the evidence on behalf of the state, created a disturbance by loud talking, cursing,' and swearing, and flourishing a revolver. Attendants at the hotel rapped on the door and requested him to be quiet. They also telephoned to the police station. A guest of the hotel, who had met the defendant and drank with him in the evening, and who was attracted or disturbed by the noise, went to the door of the room where the defendant and his wife were, heard him swearing and cursing and calling her names, and heard her say, “please don’t point that gun at me.” The guest rapped on the door, told the defendant who he was, and asked him to quiet down. The defendant hesitated in •opening the door, stating that he did not know whether the guest was the person whom he represented himself to be or a “cop,” and threatened to kill the first person who entered the room. He finally opened the door, but at the same time pointed a loaded revolver at the guest, commanding him to
The defendant was a witness in his own behalf, and in-detail related his domestic trouble, his mental distress, his excessive drinking of liquors during their trouble, and his lack of all memory of shooting the deceased, substantially as he related those things to the reporters. He further testified on the morning of the day preceding the homicide he drank a bottle of gin, and during the day and night before the-homicide much whisky and other intoxicants, and that just before entering his wife’s room he imagined mad dogs on the street attempting to pursue him, but held back by ropes, and that he fled from them. Several witnesses testified that they saw the defendant drinking much liquor on the afternoon and night before the homicide; that he was drunk, and acted wildly, and talked incoherently. His wife testified that he entered her room very drunk, greatly agitated and excited, and that he fell on the floor and with difficulty arose- and undressed himself; that he crawled on his hands and knees with the gun in his hand, peered under the bed, stared at her, acted wildly, made some disturbance, placed the revolver under the pillow, and, as she attempted to get it, re-seized it and flourished it; and that when the deceased entered the room, and walked toward the defendant, and attempted to take the gun from him-, a struggle ensued, and that the gun was accidentally discharged. She testified that the defendant for some time drank excessively, and she and a physician testified that (about six months prior to the homicide the defendant was in a state of acute delirium tremens and was taken to a hospital. Two physicians, on behalf of the defendant, on hypothetical questions submitted to them, testified that the defendant at the time of the homicide was in a state of delirium tremens or alcoholic insanity, and in their opinion was then irresponsible. A physician, for the state, on a hypothetical question submitted to him by the state, testified that in his opinion- the defendant was not then suffering from such or other mental derangement, and that he was responsible for his acts and conduct; but, on a
The court evidently thought that there was some evidence-calling for a charge on the subject. With that conclusion we-assent. The further inquiry, therefore, is: Was the proposition correctly stated- in the request; and, if so, was it in substance given? The first is not disputed; the second is. What the court charged is that homicide is excusable “when-committed by 'accident and misfortune in doing any lawful act by lawful means with usual and ordinary caution- and without any unlawful intent,” and that “an accident is an event happening without the concurrence of the will of the-person' by whose agency it was caused; it is an event which takes place without one’s direct intention; and when a homicide appears to be excusable, as defined above, the person indicted cannot be convicted of any degree of crime.” Abstractly, the proposition is well stated. But the duty of the-court is not always discharged by merely giving the jury lan abstract and lexical definition of a thing, as was done here. Litigants are entitled to have the court declare the law applicable to the particular facts of the case; to charge concretely, not abstractly. A charge which applies the law to-the facts of the case, and states to the jury the crucial question or questions involved, which they, upon the evidence, must answer, is much more helpful to them, and conduces-far more to a just administration of the law, than mere abstract propositions of law, dissertations on sound theories, or lexical definitions of things,' concerning the application-of which the jury are left in doubt or allowed to make as-
“(20) If you should find that the defendant fired the shot in question, and that, when he did so he was drunk, the fact of his being drunk, if you find it to“be a fact., does mot render the act less criminal, and in that sense it is not available as an excuse; but there is nothing in this to exclude drunkenness as evidence upon the question as to whether the act was deliberate and premeditated. Presumptively, every killing is murder; but, so far as the degree is concerned, no presumption arises from the mere fact of killing, considered separately and apart from the circumstances under which the killing occurred. The question of degree is one of fact, to be determined by the jury from the evidence in the case, and drunkenness, as evidence of a want of premeditation, may properly be considered. Drunkenness neither excuses the offense nor avoids the punishment which the law inflicts, when the character of the offense is ascertained and determined, but evidence of drunkenness is admissible with reference solely to the question of premeditation. In cases of premeditated murder the fact of drunkenness is immaterial. A man who is drunk may still act with premeditation, as well as a sober one, depending upon the degree of intoxication, and may be equally responsible for the consequences of his act. In murder in the first degree, it is necessary to prove the killing was premeditated, which involves, of course, an inquiry into the state of mind under which the
The court also charged the jury that if they, from a deliberation upon the whole of the evidence submitted to them, entertained a reasonable doubt as to whether the defendant at the time of the homicide was suffering from alcoholic insanity or delirium tremens to the extent that he was incapable of distinguishing between right and wrong, and of comprehending the nature and quality of the act committed by him, they should 'acquit him. The jury evidently believed and found that the defendant was not so suffering ■ from such mental derangement, and found that issue against him; and there is evidence to justify such a finding. But in the quoted charge we think the court too much restricted the jury’s consideration of the evidence of the defendant’s drunkenness, and stated the law in that regard rather misleading, conflicting, and to his prejudice. The evidence in respect of the extent of the defendant’s intoxication at the time of the homicide is conflicting. There is, however, considerable evidence to show that he then was drunk, agitated, and excited.
We have a statute (Comp. Laws 1907, sec. 4070) which provides:
“No act oomjmitted by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated ^t the time, in determining the purpose, motive, or intent with which he committed the act.”
Independently of a statute, it is- the general rule that, while voluntary intoxication does not excuse crime, and is usually not a defense thereto, yet such condition of the accused at the time of the commission of the offense may be considered in determining the purpose, motive, or intent, where these elements become a material question of inquiry.
When the court told the jury that “in cases of premeditated murder the fact of drunkenness is immaterial,” the court, if it did not give them a wholly incorrect principle, gave them a charge which is misleading and apparently in direct conflict with other portions of the charge. If by the language used the court meant what it fairly implies, and what the words ordinarily convey, that portion of the charge is erroneous. If, on the other hand, the court meant to express the thought that, though the defendant at the time of the commission of the offense was drunk, yet if the jury believed beyond a reasonable doubt that he was not so drunk as to be incapable of deliberation and premeditation, and of forming or entertaining .as specific intent or design to take life, and that he willfully, deliberately, with malice aforethought, and with the specific intent or design to take the life of the deceased, shot and killed him, the fact of drunkenness was immaterial, then the court did not, by the language referred to, use language which, fairly or reasonably conveys that meaning'. The court here dealt with the subject of the defendant’s voluntary intoxication, and directed the jury the purpose for vfliich it could be considered by them in determining the defendant’s guilt of the charged offense. Again, if by the charge the court meant that drunkenness was imma
True, in other portions of the charge the jury were instructed :
“(16) Whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.”
Here the court left it to the jury to determine whether the existence of a particular purpose, motive, or intent was a necessary element of the charged offense, and then, in paragraph 20, directed them that “in cases of premeditated murder the fact of drunkenness is immaterial,” and1 that “evidence of drunkenness is admissible solely to the question of premeditation.” Thus, when the charged is looked at as a whole, it is conflicting, misleading, and confusing, as to the purpose for which the jury could consider the defendant’s condition of voluntary intoxication, if they found he was in such condition at the time of the homicide.
But it is said that, because of our statute (Comp. Laws 1907, sec. 4856) and the holding of our territorial courts (People v. Tidwell, 4 Utah, 506, 12 Pac. 61; People v. Cal
“Upon a trial for murder, tlie commission of the homicide hy the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, shall devolve upon him, unless the proof on the part of the prosecution tends to show that the crime committed amounts only to manslaughter or that the defendant was justified or excusable.”
The territorial courts, in the eases referred to, held that under the statute, upon proof of the killing, without a showing by the prosecution of circumstances in excuse, mitigation, or justification, the burden of proof, the onus probandi, shifts to the defendant, to prove by a fair preponderance of the evidence facts in mitigation, excuse, or justification; that is, in cases where the issue of self-defense, insanity, or any other defense of excusable or justifiable homicide is raised and relied on by the defendant, he, in order to avail himself thereof, is required to prove it by a fair preponderance of the evidence, a clear shifting of the burden of proof. Sven though such an interpretation of the statute should1 be adopted, still the charge referred to is not justified in a case where, as here, the attendant facts and circumstances of the killing are shown and are in evidence; for, as already pointed out, when such is the ease, the inferences of intent and malice and the character of the killing are to be determined as matter or inferences of fact, from a consideration of all the facts and circumstances in evidence, and not upon legal presumptions operating in the absence of explanatory evidence. And in such case it is not proper, nor justifiable by the statute, for the court, as was here done, to impose on the deliberation of the jury the legal presumption, and require them to presume a murder from the bare fact of the killing, regardless of the attendant facts and circumstances in evidence.
But these early territorial cases have been greatly modified, if not repudiated, by this court in the very recent ease of State v. Vacos, 40 Utah, 169, 120 Pac. 497. In that case
“We are clearly of the opinion, therefore, that in any case coming within the purview of section 4856 the duty or burden is cast upon the defendant to produce or bring forward the evidence in support of justification or excuse; but he is not required to establish the justification or excuse by a preponderance of the evidence before he is entitled to avail himself of that defense. All that he is required to do is to produce sufficient evidence of justification or excuse, which, when considered with all the other evidence in the case, will create a reasonable doubt in the minds of the jurors whether the homicide in question was justified or excusable or not.”
We think this a correct statement of the law, and the proper interpretation of the statute. It was concurred in by a unanimous court, while the territorial cases were by a divided court. The opinion clearly points out the distinction between “burden of proof,” the onus prohandi, the necessity of establishing the existence of a fact or a proposition by. evidence which preponderates to a legally required extent as against all counter evidence, and “burden of evidence,” the necessity of mere duty of proceeding or going forward and producing or bringing forward evidence in support of a proposition of fact. It is the latter, and not the former, which the statute casts on the defendant — not the necessity of establishing a justification or excuse as against presumptions or counter evidence, but the duty of proceeding or going forward and producing or bringing forward evidence of justification or excuse, when the commission of the homicide by the defendant is shown, without explanatory or attending circumstances. The burden of proof, however, to show malice, and a willful and intentional killing, and every other element necessary to constitute the charged offense, at no stage of the proceeding shifts, but remiains with the prosecution throughout the trial; and if upon the whole of the evidence, including that produced by the defendant, or the circumstances in mitigation, justification, or excuse brought
Concurrence in Part
(concurring in part, and dissenting in part).
E. L. Penrose, one of the press reporters who interviewed the defendant a few hours after the homicide in question took place, was called as a witness by the defendant, and in his direct examination testified that at that interview he
Coming, now, to what occurred in Mrs. D'ewey’s room just prior to and at the time of the homicide, the evidence without conflict shows that when a man by the name of Campbell knocked on the door the defendant requested Mrs. Dewey to open the door,- and that Mrs. Dewey replied that she would not open the door “as long as the gun was. pointed’ that way that the defendant then said, “I want to see whether it is a cop or not,” and that he would kill the first son of a-that camie in the room, and if a cop. came he would kill him, too. Mr. Campbell said: “This is not a cop; this is Mr. Campbell, your friend.” The door, was then opened, and the defendant pointed the gun at Mr. Campbell who entered the room “with his hands up.” Mr. Campbell succeeded in partially pacifying the defendant. The defendant then placed the gun on the dresser. Mrs. Dewey started toward the dresser to get possession of the gun. The defendant observed her movement, picked up the gun, and retained possession of it until Sergeant Johnston, together with two other policemen, entered the room a few minutes thereafter.
Up to this point there is but little, if any, conflict in the evidence regarding what was said and done by the defendant. Mr. Campbell and the two policemen who were with Sergeant Johnston .at the time of the shooting were called as witnesses by the state, and each of them testified that when Johnston entered the room he walked towards the defendant and said, “What’s the trouble here ?” that the defendant said, “There is no trouble,” and drew the gun from behind his leg, where he had it concealed, and1 shot Johnston; that John
Mr. Campbell testified that when be entered tbe room on tbe occasion in question tbe appearance of tbe defendant indicated that “be bad been drinking;” that “be looked awful mad.” In answer to tbe question, “Does a sober man, a man in possession of bis mental faculties, usually look like Mr. Dewey did that night?” tbe witness answered, “No; as I say, be bad1 been drinking, and be stared at me — looked right straight at mje all tbe time.” Mrs. Dewey testified that when Johnston entered tbe room tbe defendant was bolding tbe gun in bis band; that it was cocked. She further testified: “Q. Now, what did Mr. Johnston do, if anything, when be entered tbe room ? A. He looked at me and said, What’s tbe trouble here?’ and then be looked at
Tbe jury having, by tbeir verdict, found, and tbe evidence fully justified tbe finding, that tbe defendant was sane and in possession of bis faculties wben be fired tbe fatal shot, we have a case in which tbe evidence tends to show that the accused, after having become somewhat intoxicated, went to bis wife’s room at tbe Albert Hotel with tbe intention of killing — murdering—his wife; that on entering tbe room be commenced quarreling with bis wife, became very angry, drew and flourished a revolver, and abused his wife by cursing and swearing at her and calling her vile names; that several guests of tbe hotel were disturbed by tbe .defendant’s boisterous conduct, and went to tbe room in which be was making tbe disturbance; that these guests beard tbe defendant’s wife say to him, “Please don‘t point that gun at me;” that tbe police were notified of tbe disturbance and requested to come to tbe hotel and restore order; that one of tbe guests, Mr. Campbell, knocked at tbe door of tbe room in which tbe defendant was swearing at and calling bis wife vile names; that tbe defendant thereupon threatened to kill the first person who entered tbe room, and that if a “cop?’ came in be would “kill him, too;” that Mr. Campbell was admitted to tbe room, and as be entered tbe defendant pointed a gun at’ him and commanded him to bold up bis bands, which
As hereinbefore pointed out, there is a conflict in the evidence as to whether the defendant shot before Johnston grabbed the gun or after. Sullivan, Riley, and Campbell all testified that the defendant shot before Johnston got to him. Mrs. Dewey testified that the gun was discharged after Johnston had seized the muzzle end, the barrel of the gun, and he and the defendant had fallen to the floor in the scuffle for the possession of the weapon. As I read the record, the evidence when viewed in the light most favorable to defendant, does not support or tend to support the theory, advanced in behalf of defendant, that the shooting was accidental. The claim made that the shooting was accidental is based on the testimony of Mrs. Dewey, that the defendant was intoxicated and that the gun was discharged in a scuffle between Johnston and the defendant for the possession of the weapon. The undisputed evidence shows that the gun, when taken from the defendant, was cocked. This tends to show, if it tends to show anything, that the defendant was endeavoring to shoot Johnston the second time when the gun was taken from him. This circumstance, when considered in connection with the statement, made by the defendant a few hours after the homicide, that he went to the room where it occurred, on the occasion in question, with the intention of murdering his wife, and the further fact that he made threats a few minutes before the officers entered the room that he would kill the first person who came in the room, and if a “cop” came in he would “kill him, too,” is entirely inconsistent with the theory advanced that the gun was accidentally discharged. I am therefore of the opinion that the court did not err in refusing to instruct the jury on the theory of accidental shooting, as requested by defendant. The court instructed the jury, in the language of the statute,
While the great weight of the evidence tends to show that the defendant at the time of the shooting realized and appreciated what he was doing, and fully comprehended the nature and consequences of the act, yet there is evidence (that given by the defendant himself) which, if believed, tends to show that he was under the influence of intoxicants, and was so drunk that he was incapable of forming an intent to injure anyone, and that he did not comprehend or realize what he was doing, or the consequences of the act. He was therefore entitled to have the jury properly instructed regarding the
“You are instructed that, before you can find the defendant guilty of the act charged, you must be satisfied beyond a reasonable doubt that he entertained a specific intent to commit the act, and that it is .just as necessary that the intent be proved as it is necessary to prove the act itself, which intent must be found by you as a matter of fact before a conviction can be had. In considering the question of intent, you should take into consideration the nature of the defendant’s acts at the time when the alleged act was committed, and all other circumstances in evidence in the ease calculated to throw light upon the intention, including his mental condition at the time in question and whether or not he was mentally capable of entertaining such intent.”
On the question of defendant’s alleged intoxicated condition at the time of the shooting, and the purpose for which such intoxication might be considered, the court instructed the jury in the language of the statute (Comp'. Laws 1901, section 4070) as follows:
“No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.”
The court also charged the jury:
“It is a well-settled rule of law that drunkenness is no excuse for the commission of crime. It does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated, and drunkenness forms' no defense whatever to the fact of guilt; for, when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice and*561 misconduct to shelter himself from the legal consequences of such crime; but evidence of drunkenness can he considered by the jury for the purpose of determining the degree of the crime.”
Up to this point the court correctly charged the jury regarding the purpose for which they might consider the fact, if they found1 it to be a fact, that the defendant was intoxicated at the time of the homicide. The court, in its instruction No. 20,' set out in the foregoing opinion, among other things charged the jury, and I think correctly, that “in murder in the first degree it is necessary to prove that the killing was premeditated, which involves, of course, an inquiry into the state of mind under which the party committed it, and in the prosecution of such inquiry his condition as drunk or sober is proper to be considered. . . . The question of degree is one of fact, to be determined by the jury from the evidence in the case, and drunkenness as evidence of ai want of premeditation may properly be considered.” But the court unfortunately, and no doubt inadvertently, in ■ that same instruction (No. 20) said: “In case of premeditated murder the fact of drunkenness is immaterial.” This part of the instruction which I have italicized is not only in direct conflict with the other portions of the instruction which I have set forth, but is in conflict with other portions of the charge on the same question, and, as said by Mr. Justice Straup in the foregoing opinion, “when the charge is looked at as a whole, it is conflicting, misleading, and confusing as to the purpose for which the jury could consider the defendant’s condition of voluntary intoxication at the time of the homicide,” and the defendant’s rights were thereby prejudiced.
I am of the opinion that where, as in the ease at bar, the facts and circumstances leading up to and surrounding the homicide are shown, it is prejudicial error for the court to charge, as was done in this case, that “presumptively every killing is murder.” I agree with my associates in what is said, and in the conclusions reached by them on this phase of the case. Therefore I concur in the judgment of reversal.