208 P. 860 | Idaho | 1922
Lead Opinion
Appellants were jointly informed against by the prosecuting attorney of Ada county for the killing of one Wong Bock Sing. They were convicted of murder of the first degree and sentenced to life imprisonment. They moved for a new trial, which was denied, and have appealed from both the judgment and the order denying a new trial.
Appellants assign as error the introduction in evidence of the garments worn by Wong Bock Sing at the time he was killed, such garments being bloody and having in them cer
In this case the garments offered in evidence were clearly admissible. The state was attempting to show the participation of the two defendants in the shooting that killed the deceased, and the bullet holes in the clothing tended directly to establish the contention of the state in that respect.
At the time of the arrest of Dong Sing, about 9 o’clock on the evening of the homicide, he was taken in an automobile from the place where he was arrested to the police station. At the time of his arrest he was searched for weapons by the person who arrested him and also by the police officer into whose charge he was given; and no revol
Appellants complain of .the giving of certain instructions, but it will not be necessary to set out such instructions in full in each case.
In instruction No. 15, in which the court defined certain words, this language was used: “and ‘malice aforethought’ means that the act was done with malice and premeditation.” Instruction No. 17 also includes a similar statement. Counsel for appellants appear to assume that in these instructions the court was undertaking to distinguish between murder of the first degree and murder of the second degree. In this they are in error. The attempt seems to have been only to impress upon the jury the elements necessary to make up the offense of murder of the first degree. The statement that malice aforethought involves malice and also premeditation of the killing is misleading. While malice aforethought necessarily means the existence of malice in the mind of the accused at and prior to the time of the com
We are unable to see, however, just how this erroneous statement regarding malice aforethought was injurious to defendants. In instructions Nos. 11 and 24, which are the only instructions in which the court undertook to define both degrees of murder, there is a correct definition of each and the distinction between the two is properly pointed out.
Appellants further object to instruction No. 17 on account of this language: “There need be no appreciable space of time between the formation of the intent to kill and the killing. They may be as instantaneous as successive thoughts.” It may be admitted that this form of expression might be somewhat improved, but, notwithstanding that fact, we think it safe to say that it conveyed to the minds of the jury a correct understanding of the law on the subject of deliberation and premeditation when taken in connection with the other instructions given by the court. The charge as a whole inade perfectly clear to the jury that there could be no conviction of appellants of murder of the first degree unless there was an unlawful killing of the deceased wdth malice aforethought after appellants had deliberately and premeditatedly formed the intention to commit such act. Granted that the deliberate and premeditated intention to commit murder has first been formed in the mind of the slayer, such intention may be executed instantly and he will be guilty of murder of the first degree. (Wharton’s Homicide, 3d ed., 164; 1 McClain’s Cr. Law, sec. 358; Van Houton v. People, 22 Colo. 53, 43 Pac. 137, 142 , People v. Hunt, 59 Cal. 430, 431, 435; Binns v. State, 66 Ind. 428, 433; State v. Shuff, 9 Ida. 115, 72 Pac. 664.)
Instruction No. 17 further said: “It is only necessary that the act of killing be preceded by the concurrence of will, deliberation and premeditation on the part of the
We must assume that the jury were men of ordinary intelligence, and that they conscientiously applied such intelligence to an examination of the evidence under the instructions of the court. If they did they could not have failed to understand that in order to convict appellants of murder of the first degree, the murder of deceased must have been the result of the concurrence of will, deliberation and premeditation on the part of appellants, notwithstanding a specific statement to that effect was lacking.
Instruction No. 16 as given by the court begins with the following sentence: “Malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. ’ ’
This expression was criticised by this court as erroneous in considering a similar instruction in the case of State v. Rogers, 30 Ida. 259, at pages 266, 267, 163 Pac. 912.
The most serious objection to the instructions given is that taken to instruction No. 23, which reads as follows: “No. 23. The jury are instructed that while the law requires, in order to constituté murder of the first degree, that the killing shall be wilful, deliberate and premeditated, still it does not require that the wilful intent, deliberation or premeditation shall exist for any length of time before the crime is committed. It is sufficient if it appears from the evidence beyond a reasonable doubt that there was a design and determination to kill distinctly formed in the mind of defendant at any moment before, or at the time, the blow was struck or the killing took place.”
The objections to this instruction go to the statement that the law does not require that “the wilful intent, deliberation or premeditation shall exist for any length of time
As to the first objection it may be said that while frequently the word “length” in such an instruction as this is preceded by the word “particular” or “definite” or some such word, we think the instruction as it was given conveyed to the jury the meaning that no special length of time was required for the existence of such intent. In discussing in their brief “malice aforethought” as implying an intentional act as distinguished from an act done on sudden provocation, counsel for appellants quote with approval sec. 329 of vol. 1, McClain’s Criminal Law, which contains this statement: “It is not necessary that the intent shall have been entertained for any length of time.” Evidently counsel understood this expression, “any length of time,” just as the jury must have understood it, meaning any special or particular length of time.
If nothing more appeared than that at the instant the blow was struck or the killing took place there was an intention to kill, there being no time for deliberation or premeditation, the killing would not be murder of the first degree, and it is the contention of counsel for defendants that approval of the expression, “It is sufficient if ... . there was a design and determination to kill distinctly formed in the mind of defendant at any moment before, or at the time, the blow was struck or the killing took place,’” eliminates deliberation and premeditation as essential to murder of the first degree.
The word “distinctly” means “clearly,” “plainly.” “Design” means “a plan or scheme formed in the mind of something to be done.” “Determination” means “purpose,” “conclusion,” “fixed resolution.” (Webster’s New International Dictionary.)
If such design and determination were “distinctly formed in the minds of defendants” at the time they fired the shots that killed deceased, such design and determination could not have been in process of formation while the shots were
In the case of Green v. State, 51 Ark. 189, 193, 10 S. W. 266, the following instruction was given by one of the circuit courts of Arkansas in a prosecution for murder of the first degree:
“All murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of wilful, deliberate, malicious and premeditated killing shall be deemed murder in the first degree.”
*628 “If the jury believe from the evidence beyond a reasonable doubt that the defendant, either by himself or in connection with others, inflicted the wounds or injuries on deceased, Horton, as charged in the indictment, with the intent, formed, in the mind at the time of the injuries, to take deceased’s life, and that such wounds or injuries did cause the death of deceased, they may convict of murder in the first degree.”
“An unlawful act, coupled with malice and resulting in death, will not of itself constitute murder in the first degree, but in order to constitute murder in the first degree, the killing must have been intentional, after deliberation and premeditation. ’ ’
And the supreme court of that state upheld this instruction in the following language:
“In order to constitute a homicide murder in the first degree according to these instructions, the killing must have been' wilful, deliberate, malicious and premeditated; there must have been an intent to take the life of the deceased in the mind of the slayer at the time the act of killing was done; and the intent must have been formed after deliberation and premeditation. This is, in effect, telling the jury that the intent must have preceded the killing. This is the only construction which can be fairly placed upon these instructions, and, construed in that way, they are correct.”
Other courts have sustained a similar instruction. (See Donnelly v. State, 26 N. J. L. 463, 510; Id., 26 N. J. L. 601, 616; State v. Thomas, 118 N. C. 1113, 24 S. E. 431; Perugi v. State, 104 Wis. 230, 76 Am. St. 865, 80 N. W. 593; People v. Clark, 7 N. Y. 385; State v. Lang, 75 N. J. L. 1, 66 Atl. 942; Wright v. Commonwealth, 33 Gratt. (Va.) 880, 892; McDaniel v. Commonwealth, 77 Va. 281; Commonwealth v. Thompson (Va.), 109 S. E. 447, 453; Thaniel v. Commowivealth (Va.), 111 S. E. 259, 260.)
Instruction No. 24 contained the following: “But while the purpose, the intent, and its execution may follow thus rapidly upon each other it is proper for the jury to take into consideration the shortness of such interval in consider
On the presumption that defendants were innocent of the crime charged the court gave the following instruction:
“No. 26. It is your sworn duty to commence the investigation of this case with the presumption that the defendants are innocent 'of the crime with which they are charged; and it is equally your duty to enter upon the consideration of each fact and circumstance in evidence having in your minds at all times the presumption that the defendants are innocent, applying to every such fact and circumstance the presumption of innocence; this presumption is not an idle form, but it is a fundamental and important part of the law of the land, and you should act upon this presumption throughout your consideration of the evidence, unless it shall have been overcome by proof of guilt so strong, credible and conclusive as to convince your minds to a moral certainty and beyond every reasonable doubt that the defendants are guilty.”
Appellants contend that by using the word “unless” instead of the word “until” in this instruction the court destroyed the meaning of the rule stated in C. S., sec. 8944: “A defendant in a criminal action is presumed to be innocent until the contrary is proved.” While we think the word “until” as used in the statute is preferable to the word “unless,” since that is the statutory expression, still we think no such disastrous result as suggested by appellants could have followed from the use of the word “unless.” Taking all of the instructions together and considering them as one charge, which is the rule universally laid down by the
Appellants object to that portion of the instruction given on the subject of reasonable doubt as follows:
“No. 28.....A doubt, to justify an acquittal, must be reasonable, and must arise from a candid and impartial consideration of all the evidence in the case and unless it is such that were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it would not be sufficient to authorize a verdict of not guilty.”
They insist that this instruction was given in such terms as to leave the impression with the jury that the burden was not upon the state to prove the defendants guilty beyond a reasonable doubt, but to cast upon them the burden of raising a reasonable doubt in the minds of the jury. The entire instruction as given in this case has been several times considered by this court, but while it has not been approved and recommended as a model, it has in no instance been held erroneous. (State v. Nolan, 31 Ida. 71, 81, 82, 169 Pac. 295; State v. Moon, 20 Ida. 202, Ann. Cas. 1913A, 724, 117 Pac. 757; State v. Lyons, 7 Ida. 530, 64 Pac. 236.) The great difficulty with this and many other instructions attempting to define this term is that the expression “reason
The court gave the following instruction, which appellants assign as error:
“No. 31. If you believe that any witness on either side of this case has wilfully testified falsely on any material matter, then you have the right to disregard the entire testimony of such witness, unless you find such evidence to be corroborated by other reliable witnesses or evidence.”
The objection of appellants to this instruction is based upon the use of the word “unless.” They concede that the instruction would be correct if, instead of the expresrdon “unless you find such evidence to be corroborated by other reliable witnesses or evidence,” the court had said “except in so far as you find it corroborated by other reliable witnesses or evidence.” Appellants say that “by the use of the word ‘unless’ the court authorized the jury to disregard the entire testimony of a witness whom they believe had testified falsely on a material matter unless all of his evidence was corroborated; thus authorizing them to disregard the corroborated portions of his testimony unless all his testimony were corroborated.” We think this extreme interpretation of the instruction is not warranted by the language used by the court. While the form of expression suggested is preferable to that used by the court, being substantially the same as that approved in State v. Waln, 14 Ida. 1, 80 Pac. 221, the instruction as given has nevertheless received the approval of courts of excellent standing. (Peak v. People, 76 Ill. 289; Miller v. State, 106 Wis. 156, 81 N. W. 1020, 1022.) The defendants were not prejudiced by the instruction as given.
Appellants complain of the giving of instruction No. 33, which reads as follows:
“No. 33. The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified on the trial. If you believe from the evidence that any witness has made statements out of court*632 at variance with the testimony given in this case, regarding any material matter testified to by such witness, and that such statement or statements were wilfully false, then the jury can totally disregard the testimony of such witness so impeached, making such false statement or statements, unless such witness is corroborated by other and credible evidence, or by circumstances introduced in evidence in the case. ’ ’
Our attention has not been called to any case in which this instruction was given, and we think there can be no question that it was erroneous, for impeachment by showing statements by a witness contrary to his testimony does not require that the contrary statements shall be shown to be false. We think, however, there was no prejudice to appellants when we consider the evidence submitted to the jury. This is particularly true as to the defendant Dong Sing. The particular complaint of appellants as to this instruction rests upon certain testimony of the witness Wong Chow and the impeachment which appellants directed toward said witness. Defendant Dong Sing was in the laundry immediately before the killing of the deceased. He claims to have seen two strangers there at the time who were making a disturbance and that Bock Sing, the deceased, sent him in haste for a policeman. Appellants attempt to show that these strangers were the persons who killed the deceased and that Wong Chow, while he was confined in the jail immediately after the killing, stated to Dong Sing and others that two Japanese killed Bock Sing. Taking into consideration the admission of Dong Sing that he was in the laundry almost up to the instant when the killing took place, and his unreasonable story as to his movements and his purpose after leaving the laundry, we think the jury could not have been misled to the prejudice of appellants by this instruction.
In No. 39 the court instructed the jury with regard to the law authorizing that body to fix the punishment in ease the defendants were convicted of murder in the first degree, but erroneously included in said instruction a statement as
Appellants complain also that one of counsel for the state in his argument to the jury-expressed the opinion that appellants were guilty. The record shows that this expression of opinion was probably drawn from counsel in reply to the opinion of appellants’ counsel expressed in the argument to the effect that appellants were innocent. Counsel for the state expressly based his opinion upon the evidence, and we find no error in such expression.
When we consider the character of the testimony offered in this case and the view the jury must necessarily have taken with regard to it, we are unable to see how they could have been prejudicially influenced against the appellants by reason of such errors as it must be conceded the trial court made. Appellant Lo Ming did not testify. Appellant Dong Sing admittedly was in the laundry immediately before the killing, and if his story had been believed by the jury they could have done nothing but acquit appellants. There was no room for a verdict of murder of the second degree or manslaughter. Having rejected Dong Sing’s testimony, there was no alternative for the jury, if they believed the evidence offered by the state, but to find appellants guilty of murder of the first degree. In the whole record there is nothing suggestive of any fact that would warrant the conclusion that appellants could be guilty at all without being guilty of murder of the first degree. It is true the jury might arbitrarily have convicted defendants of murder of the second degree or of manslaughter, just as they might arbitrarily have acquitted defendants even though convinced beyond a reasonable doubt of defendants’ guilt, but on the facts accepted by them as established by
C. S., sec. 9084 provides that, “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties”; and C. S., sec. 9191, provides that, “Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.”
Commenting on these statutes this court has. said: “The' substance of these statutory provisions is that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon the evidence no other verdict could properly have been found.” (State v. Marren, 17 Ida. 766, 791, 107 Pac. 993.)
There was no error in denying the motion of appellants for a new trial. The judgment and the order denying a new trial are affirmed.
Dissenting Opinion
Dissenting. — I am unable to concur. The majority opinion quotes instruction No. 23, and it will be unnecessary to repeat it here. In my opinion, the giving of this instruction was prejudicial error. Under C. S., sec. 8997, the jury has the absolute right to find a defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. Therefore, where the charge upon which a defendant is being tried is first degree murder, the jury may bring in a verdict of guilty of murder in the second degree or of manslaughter. It is essential under such circumstances that the jury be correctly
The statement contained in instruction No. 23 that “it is sufficient if it appears from the evidence beyond a reasonable doubt that there was a design or determination distinctly formed in the mind of the defendant at any moment before or at the time the blow was struck or the killing took place,” is not merely an inaccuracy in an instruction defining first degree murder. It excludes the necessary elements of deliberation and premeditation. It abolishes the distinction between first and second degree murder, and between murder and voluntary manslaughter.
"While it is true that there are decisions of courts of high standing, which are entitled to great respect, sustaining such an instruction, or one in substance and effect the same, the authorities are not uniform in upholding it.
In the case of State v. Clayton, 83 N. J. L. 673, 85 Atl. 173, we find the following:
“Upon the question of murder in the first degree, the following instruction to the jury is brought before us upon error assigned on a bill of exceptions: ‘If the shooting was done with deliberation and premeditation, if you find that beyond a reasonable doubt as I told you, then the crime is murder in the first degree. Now, as to the premeditation and deliberation, there need be no particular interval of time, as I told you. The human mind acts so quickly that if you find that this man shot, and had the interval of time, however short, to form that intention, it is enough if he formed the intention and carried it out. That is what is meant by deliberation in the law.’
“Of the error of this instruction there can be no doubt. In so far as it instructed the jury that the formation and execution of an intention to kill was what was meant by deliberation in the law it was directly opposed to what we decided in State v. Deliso, 75 N. J. L. 808, 69 Atl. 218; and in so far as it instructed them that the interval of time, however short, required to form the intention to kill included sufficient time for premeditation and deliberation, it was op*636 posed to what we decided in State v. Mangano, 77 N. J. L. 544, 72 Atl. 366, as well as to the plainest dictates of reason, for, however brief may be the interval of time required for the performance of any one of the three mental acts involved in murder in the first degree, viz., premeditation, wilfulness (i. e., intention), and deliberation, the fact remains that they are not only distinct mental acts, but also that one succeeds another as was pointed out in State v. Deliso. They cannot therefore be synchronous as is implied in this instruction.” (See, also, Donnelly v. State, 26 N. J. L. 601; State v. Bonofiglio, 67 N. J. L. 239, 91 Am. St. 423, 52 Atl. 712, 54 Atl. 99; State v. Deliso, 75 N. J. L. 808, 69 Atl. 218; Nye v. People, 35 Mich. 16; State v. Banks, 143 N. C. 652, 57 S. E. 174; People v. Long, 39 Cal. 694; Ross v. State, 8 Wyo. 351, 57 Pac. 924; Fahnestock v. State, 23 Ind. 231; State v. Phillips, 118 Iowa, 660, 92 N. W. 876; Parker v. State, 24 Wyo. 491, 161 Pac. 552.)
The instruction should not be sanctioned in this state, especially in view of the fact that a verdict of guilty of murder in the first degree may carry with it the death penalty.
Instruction No. 33 is also quoted in the majority opinion. This instruction is clearly erroneous, since proof of contradictory statements made out of court is sufficient to impeach a witness, without a further finding by the jury that such statements were wilfully and intentionally false. (C. S., sec. 8039.) This instruction in very many cases would deprive a party of the benefit gained by the impeachment of a witness, and might be highly prejudicial.
Petition for rehearing denied.