26 Mont. 52 | Mont. | 1901
delivered the opinion of the court.
This case is now before the court for the second time. Upon the first appeal the defendant, who had been convicted of murder of the first degree, was granted a new trial. The opinion is reported in State v. Shadwell, 22 Montana 559, 57 Pacific Reporter 281. The result of the second trial was a verdict of guilty of murder of the second degree, followed by a judgment sentencing the defendant to life imprisonment. Erom the judgment and from an order refusing a new trial, the defendant appeals. The evidence adduced upon the second trial was much the same as that received upon the first trial, the statement of which is made in the former opinion.
The court gave the following instruction: “(26) The court instructs the jury that no threats or menaces made by the deceased, O’Connor, against the defendant, Shadwell, can avail the defendant unless he, at the time of the killing, was actually assailed, or had sufficient evidence to convince any reasonable person that he was in danger of incurring great bodily injury or of losing his life at the hands of the deceased. Whatever threats may have been made by the deceased, they cannot be of avail to the defendant, unless at the time of the killing something was done that would induce a reasonable man to suppose he was in danger of great bodily harm or of losing his life. All antecedent threats are dependent upon the facts at the time of the killing, and, in order to justify the homicide, it must appear that at the time of the killing there was some action which would induce a reasonable man to believe that he was in danger o^.great bodily harm or of losing his life.”
This instruction, the defendant insists, is an erroneous statement of the law as applicable to the evidence, and.that it is in conflict with instruction No. 27. We must sustain.the contention. The instruction quoted virtually directed the jury to disregard all prior threats of the decedent against the defendant
Instruction No. 26 conflicts with instruction No. 21. The latter instruction reads thus: “The jury are instructed that they may take into consideration, in arriving at their verdict, any threats that the deceased may have made against the defendant if they believe such threats were made, for the purpose of enabling them to arrive at the state of mind of the defendant, and for the purpose of illustrating his conduct and motives in connection with the other evidence in the case, and for the purpose, likewise, of showing the animus of the deceased and his motives.” To this instruction the defendant urges no objection. By it the jury were in effect told that any threats which had been made by the decedent against the defendant might be taken into consideration with the other evidence in the case for the purpose of illustrating his motives, conduct and state of mind at the time of the killing, and for the purpose also of showing the animus and motives of the decedent, thus charging the jury that evidence of antecedent threats were to be considered, not independently of but in connection with, all the other evidence in the ease, including that touching the conduct and
• Por the error adverted to there must be a reversal. As the cause will be "remanded, we shall call attention to such other questions as require notice and are likely to arise on a new trial.
2. “The case was a proper one to submit to the jury with instructions upon murder and manslaughter.” (State v. Shadwell, supra.) There was evidence tending to prove the defendant guilty of murder of the first degree; there was evidence tending to prove his guilt of murder"of the second degree; and there was evidence the tendency of which was to prove him guilty of manslaughter. 'Whenever the evidence warrants it-the duty of the court is to instruct the jury upon every offense included in the crime charged. (State v. Calder, 23 Mont. 504, 59 Pac. 903 ; State v. Fisher, 23 Mont. 540, 59 Pac. 919; State v. Howell, 26 Mont. 8, 66 Pac. 291.) The opinion in State v. Brooks, 23 Montana, 146-159, 57 Pacific Reporter, 1038, may, if not read as a whole, convey .the impression that the omission, of a charge upon manslaughter is error without prejudice when the jury upon sufficient evidence find the defendant guilty of murder, there being also evidence tending to' prove manslaughter; but the opinion is not so to be understood, for in that case-there was no room for a verdict of manslaughter, the killing having been done, in malice aforethought or by an insane.mam
Murder in each of its degrees and manslaughter were defined in-the charge, and the punishment for each was stated; but nowhere did the court expressly advise the jury that they might find the defendant guilty of manslaughter. The jury were instructed, in the language of Section '2145 of the Penal Code, that whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. Manslaughter is not distinguished into degrees. The only crime that the charge mentioned which is divided into degrees, is murder.. Manslaughter is not a degree of murder, although it is a grade of criminal homicide. The elements necessary to constitute the crime of manslaughter are included in.the crime of murder, but, as we have said, manslaughter is not a degree of murder. It is possible, though not
3. One Anderson, a witness for the state, on cross-examination testified that he was present when O’Connor was killed and had been in the room with the defendant and O’Connor during the night on which the homicide occurred; that he had observed the manner of O’Connor, and that he was abusive toward different persons during the night. He was then asked the • question: “Of what .did that abusive, conduct consist ?” The witness answered: “I seen him wring a fellow’s nose there; he was abusive — ”, ’ whereupon he was interrupted by the judge of the court, who remarked: “This is not proper evidence,’’ to which the defendant excepted. Immediately thereafter the witness was permitted to answer the question fully. When this case was here on the first appeal we said: “Now, suppose his conduct was boisterous; that his rage towards others was deseprate, or his temper was ferocious, and vented itself in fighting, abusing and terrifying others who came into the saloon just before the homicide; and that the defendant-observed this manner towards others. Would it not be relevant to the question of the reason of defendant’s belief, if he had one, that the attack he says O’Connor made upon him when he killed him was to do him great bodily harm? We think it would, and that, therefore, whiat transpired in defendant’s presence on the night of the killing was proper, even though it involved the conduct of the deceased towards others.” (State v. Shadwell, 22 Mont. 573, 57 Pac. 286.) We deem it unnecessary to decide whether there was error-in the remark of the judge if heard by the jury, and if so whether it was subsequently cured. Having called attention to the matter we assume that any question concerning it will, if possible, be avoided on a new trial.
The foregoing are all the matters of sufficient importance to require comment. Because of the error in instruction No. 26, the judgment and order appealed from are reversed and the cause is remanded for a new trial. Let the remittitur issue forthwith.
Reversed and remanded.