*1 FEBBUABY TEEM, 1896. 0.] Thomas. STATE GABRIEL THOMAS.
Murder —Husband?s Chastisement of Wife—Evidence
Malicious Intent. 1. The recent decisions of this Court the distinction between murder degrees and second manslaughter and Avery, J. distinguished reviewed and 2. On an for judge indictment the omission of the explain application testimony to the theory the second is error. a consequence— husband beat his wife and "Where she died in being during neck broken somehow in the scuffle —and beating something the husband said would take her,” deadly kill weapon and but used no fact her, expression the use of the under the circumstances is not specific premeditated evidence intent to take life will as constitute murder JJ., Montgomery, and dissent.
Clark indicted the murder p'risoner Louisa Thomas, his wife. The : evidence was follows
Daniel Simmons testified: “On the last, 12th of July near the mouth of Trent I was creek, Prisoner fishing. wife us in a boat. I went passed spoke. They down, little, fished a then went Mason’s stopped, Point, fastened the boat stake on river. poplar Bay I them, Jones came they back. George passed boat, We fastened our and went I Directly fishing. heard a down at Point, Mason’s looked around, screaming heard with a like beating striking fishing pole. This for five’ or ten minutes. I heard an went argu- ment between the and his wife. Heard him say, hush, If don’t I will take and kill you ‘ something you.’ I after heard lick. I Directly looked down heavy him and saw Could not boat. see her. way COURT. IN THE SUPBEME *2 licks. Imme- more struck two heavy I missed her he After down, he those licks stooped picked, after he struck diately he stood Then up and threw her overboard. his wife up, unloosed so, a minute or around boat, looked Jones, we were. boat, and where George came down Ed. Russell were there Russell, Best, D. Malinda in one boat were me. Jones myself George as here to the door. another, far from as others apart was The north-east wind was north-east. The ‘ the dar- about he said us. When he came something up, Malinda. had, he overboard.’ his, all the friend being ling ‘ No, I said, have if he killed Laura. He asked him Jones ‘ hear said, She Did I not you hands her.’ not put my ’ bis hands on her. did not He said he put her? beating On m. Saturday about 5 o’clock p. This was on Friday, was taken o’clock, 11 and 12 the body between following, stake had been down We went place. up. had moved. where the stake been We found her moved. were the before. She where they day This was the place On cross-exami- did notice her condition.” was dead. I not him asked the witness stated nation first came When he up. us help go get half head. I was mile knock her said he would he I have heard it said to be' at the time. from the prisoner Point to the month of Trent creek.”' mile from Mason’s half “ : On 12th of 1895, testified July, Jones George river boat. Prisoner I at the mouth of Trent was Point, half a mile boat at Mason’s and liis wife were down the river. I Heard fishing. ascreaming away. I and looked down that way,, After screaming, stopped, into the river. Prisoner- his wife overboard saw go in the boat at the time. Then he left the- was standing boat, Russell’s which was 50' stake, and came to Malinda where I was. As soon he there he com- from got yards FEBRUARY TERM, 1896. N.O.] that he had lost all had, the friend plained he applied ‘ Daniel Simmons to his wife Simmons get said, You np. will have to an I officer.’ called Simmons’ get attention ” ‘ to it, said, and he IYes, saw it.’
D. Best testified : Trent, was near the mouth of the Heard down fishing. screaming river. Prisoner’s wife him Heard kept she did crying. hush, say, would knock her in the head. time she During there were two the boat. Prisoner crying, came up ns, and asked Simmons to him his wife ; that help get up had she fallen overboard. Simmons said he would have- *3 an officer.” get Malinda Russell testified: “I was at Bay. Swindell’s Could see Mason’s Point, half a mile Heard a away. woman scream —burst out Prisoner told her crying. she did not hush he would knock her in head, or burst head, I don’t remember which.” “
Dr. : testified I am a Redding practicing physician since 1812. Examined on the 15th of body July. Found it I She dead: made a lying platform. examination. The neck was partial post-mortem broken. I made incision from base of skull. The bones of the neck were This dislocated. would instant death. produce Her were No watei She lungs collapsed. body. could not have been drowned. She was dead before she went into the water. It is for a fall to dislocate possible the neck. I don’t think fall from the boat would be sufficient to produce the dislocation.”
H. R. : Simmons testified I was at Mason’s Point on south side on the mentioned. Prisoner and his wife day were Mason’s Point the boat —canoe about 21 opposite feet feet The bait I out. went long deep. gave ashore, and while there! heard a the river. screaming up COUNT. IN THE SUENEME ashore. Prisoner was I went when nortli-east
Wind was he was came out and when I stake, gone.” : as follows His Honor jury charged to satisfy is the State you The burden of proof slew that feloniously doubt a reasonable beyond his inno- to show is not Prisoner required the deceased. not on the witness that he has fact gone cence, evidence, is not to receive (cid:127)stand, or introduced any The State is deliberations. required consideration your doubt of the reasonable guilt beyond to satisfy jury n ofthe prisoner State has so satisfied then and if the ; you, of crime has been as to what next inquiry your the first degree, committed —whether murder are or manslaughter. second cannot he statute, our that, under instructed unless the in the first degree found guilty doubt) evidence, reasonable from the beyond are satisfied he is feloniously that only evidence) must further from the deceased, but appear was done doubt, a reasonable beyond is, with" premeditation; willfully, deliberately and with deliberation. it was done intentionally prior evidence, all these from the beyond And unless appear *4 in doubt, cannot find murder the first the reasonable jury law in order to constitute While the requires, degree. be first that the shall murder of the killing degree, still it does not that willful, and premeditated, require intent, shall willful or deliberation the premeditation is committed. of time before the crime exist any length and sufficient if there was determination It is design mind before kill formed the moment distinctly any ; case, the blow was struck and in this if the (cid:127)or at the time evidence, doubt, believe from the reasonable beyond jury deceased, struck and killed that feloniously prisoner TERM, 1896. FEBRUARY 0.] and or at the time indictment, the that before charged mind a willful, blow he had in his was struck formed and to take deliberate and se premeditated design purp deceased, and was struck the life of the that the blow of and death ensued furtherance and design purpose, blow, effect of would be from the then he guilty murder To constitute murder degree. an done
first there must have been unlawful killing, degree, If a and with and malice. per- purposely, premeditation lias son formed the actually purpose maliciously and has deliberated and it before premeditated upon act, and then he is it, performs performs however short the time may have been between the and its execution.' It time which constitutes distinctive difference between murder in the first and murder degree second Deliberation and are essen- premeditation ; tial in order to constitute it it time, matters not how short if the has turned party over in his it. mind, deliberated upon weighed is the unlawful and felonious Manslaughter malice, another without mature delib- without any eration whatever. two a sudden fight persons Jf sud- and one other, passion quarrel, slays having aroused, If and without malice, it is denly manslaughter. should believe from the evidence jury pris- oner deceased were in a sudden engaged quarrel and that then deceased, slew the fight, would be manslaughter.” the court prisoner prayed charge wife
the denial of the charge as evi- at the time he went taken to the boat should be up in his favor. dence This was The pi’isoner prayed given. evi- the court believed charge if'they *5 1118 IN THE SUPREME COURT.
State not a verdict of murder true, dence to be it would justify refused, in the first This was and prisoner excepted.
There was a verdict The moved the indictment. degree, charged prisoner it was to set aside the verdict against ground overruled, sen- of evidence. The motion weight tence of death was the prisoner appealed. pronounced, General, The for the State. Attornexj counsel, No contra. : J the courts of
Avery, Pennsylvania Following a same words, statute interpretation substantially this Court construed the Act of 1893 as imposing upon State, a where conviction is asked for murder the burden of doubt, reasonable proving beyond actual malice or simply weapon, deadly but, from which malice would be in addition, presumed, “ deliberate, .the was done in pursuance on the premeditated preconceived.design part ” Fuller, take the life of the deceased. prisoner N. In 115 C., Norwood, C., 789, review, which next came it was settled if the up “ life,” fixed once formed to take design was immaterial how soon after deliberately determining to do so the into execution. The carried in that case to her mother confessed she wished rid of” her because it would get baby, prove such a and she was bother to her the next think spring, it,” how she would rid of when it ing get began cry, she stuck a down its and it throat, pin strangled. next v. McCormac, indictment this statute under (State C.,N. was one where there was circumstantial testi- 1033) *6 TEEM, N. EEBBUABY 1119 0.] State v. Thomas. to show the deliberate of two
mony tending preparation in the and the pistols early part night (prisoner having deceased both till the the spent night killing was done at two o’clock the at the same morning, It further that, evidence before the house). just a witness out into the leaving killing, stepped yard, where the lamp burning piazza, prisoner were, deceased and that the was extin thereupon light when, the after off as guished by prisoner, walking if about leave, turned and shot the suddenly deceased, fired, as he that will do saying “guess you,” that he laid one the at the feet of man, the dead pistols “ so, as he did I reckon will let me alone exclaiming you now.” there was. Except testimony prisoner, no evidence to show that the time of the tending there was or dispute shooting quarrel progress, that the deceased was with or even toward looking talking The court held that it was not error to sub prisoner. mit to the instructions, jury, proper question n whether the was sufficient to show rea testimony beyond sonable doubt that was done deliberately after premeditation. The Court it was not held also to show that to kill was conceived necessary before that at the house where the evening, spent was done. In C., 834, Covington, pris oner said in his I comrade, confession to watched my chance and his pistol, the old man and wrenched jumped hollowed, and the old man I him Then shot ‘murder!’ I aimed to and this must him, shoot through body. have been when I him The shot the neck.” pris through deceased, oner had it wras broken into the store of the shown that There was wound the neck was fatal. kill no other evidence of the circumstances attending was not confession, it was held ing, except IN THE SUPREME COURT. ». Thomas. error to instruct was either of murder or not guilty. rested ruling con ground according ” fession, which evidence, aimed only to kill and formed the to do so, not the heat of design *7 aroused ,a combat, but when the had passion deceased by that he was and with the man acknowledged vanquished, ifest motive of the crime of into the concealing breaking store. In these cases find we different combi reviewing circumstances, nations of facts and which, believed, war" “ rant a in is a deliberate, there fixed or finding ” life, to take premeditated preconceived design illustrate of they the abstract rule. But application this Court has never as to ventured more yet specific give definition the mental which the process Legislature intended to describe the use of these words than the one in given Fuller's case. It to general say is.inaccnrate an whenever there is intent homicide to the class in of murderers belongs because it often that one of the happens parties fight conceives the in the heat of the combat to take the life of his and carries it into execution adversary the use of a is the offence deadly weapon, yet only most, be excusable homicide. manslaughter may State v. Wilcox, at this Term. But in order to meet of the must show what is requirements statute, the State “ called a Law, intent.” Wharton Criminal specific says (1 “ Sec. 377): definition Pennsylvania general dis statutes does not affect the common-law cognate tinction between It murder and manslaughter. simply murder, divides murder into two with classes; speeifie deliberate intent to take life, being life, murder, an intent to take degree; without being in then, second degree_Whenever, TERM, FEBRUARY 1121 0.] homicide, ease of deliberate is no there intention specific take life, is murder the second The word degree.” n which marks the two is distinctly degrees “premedi tated,” the of which, definition v. Snell, 78 Mo., 243, Wharton, Law, 1 Criminal quoted approval by “ note, Sec. 380, is beforehand any thought length time, however short.” To that murder was of the say because it was moment, intended at the degree, simply Freeman in note (said Commonwealth Whiteford ‘ Dec., thewopds Am. would be to construe 781,) delib ’ ” erate and out statute. It premeditated of terms the Court over which perversion Chief (said Jus_ Cooley tice Nye Mich. presiding People, ’ ‘ 16 to the term ) deliberate act which is apply done on a sudden “An intent to kill exist impulse.” may homicide, other in no but other degrees unjustifiable *8 is intent formed into degree delib purpose by fixed eration and v. 1 Jones, Com. premeditation.” Leigh, 610. This is intent defined others as steadfast by resolve and or a deep-rooted after formed purpose, design v. carefully State, Athinson considering consequences. “ Texas, 20 522. The fixed resolve to the Court (say Foren, Cal., in California 25 which People 361,) to murder is belongs different degree something from the minor intention, which the marked lacks quality of and characteristics' or cold deliberation distinguishing qf The same mind as state is described premeditation.” ” “ a v. Carter, Mo., cool state of the blood in 70 wait, Where is-not done in by poison- lying or in in the out stat- ing, any specific pointed ways ute, and first the test of its as murder classification is the whether there has been degree question premedita- and deliberation, tion cannot rest officer prosecuting the case'for state proof previous rely upon 118 —71 COURT. IN THE SUPREME v. Thomas. be can more than malice, of actual
existence malice, constructive (as admission even of or proof awith is from killing case, presumed Fuller’s supra) deadly weapon. State, Alabama, The Fielder Court of
The Supreme has been 348, Ala., inaugu- illustrate change as a ours, when they approve, rated such statutes as dis- second degree, definition of modern described more from those specifically tinguished deliberation, those there where premeditation common have answered that would definition of a reasona- offence, unlawful viz. : law or either express ble with malice aforethought, person, hom- those included The common-law offence implied.” wait, torture, icides effected lying by poisoning, acts revolting no distinction between recognized influence of one, under passion where the killing another insult, .a slays engendered grossest sense of implanted The innate deadly justice weapon. distinction that a man the breast of demanded every, good actual, where there drawn cases should be between where fixed pur- and those provocation, though legal aor mercenary from shown, whether malignity pose desire for money. enumer- Aside in the commission from Law, 391,) 1 Criminal felonies, Wharton,
ated (says life, is to take intention rule is where the deliberate ; where and death it is murder ensues, *9 harm, and death is the intention to do serious bodily intel- ; where is murder in the second ensues, degree stimulants, undue and lect is confused drink or so delibera- as to be not homicidal incapable yet passion, done and where the tion, killing 379 389,) (Sections act than unlawful other to commit any attempt TERM, FEBRUARY 1896. 1123 O.] State
those in the enumerated but with no to statute, design take life, would be of murder at com though slayer mon-law, it is now murder the second only degree.” Wharton, ; Sections 389-392 v. Johnson, State 40 supra, 136; ; Conn., v. L., Com. Lewis C. 403 State Hagerty, v. Ellis, Mo., 207; 74 v. Mo., State 207; 74 Kittosky, v. Com., Pa. St., 322; 98 v. Newbury Robinson, 20 Va.,W. 713. In order to constitute deliberation pre meditation, more must than something appear prior existence of actual malice, or the of-malice presumption which arises from tlie use aof deadly weapon. Though the mental but a thought, moment of process may, require it must shown, be as so to rea satisfy jury beyond sonable doubt, and balanced the prisoner weighed in his subject long mind to consider the enough reason or which him act, motive to impellfed form a fixed kill, to in furtherance of such design purpose Tenn., or motive. v. State, 10 Anthony ; 272 (Meigs,) Jones, Mo. 218 State Houston ; Sharp, Rep., Law, 21; Cr. Iowa, State v. (Del.,) Boyle, It is the province pass upon proof jury intent, and the had that the no cause to complain court told the ‘“that it was sufficient to constitute in the th'ere should be design and determination in the mind kill, formed distinctly struck,” moment before or at the blow was the time if the of that testimony any phase of homicide. If it were conceded that grade vague threat of “to his wife in the head knock did she hush was sufficient to be submitted crying” evidence of a distinctly specific formed be mind, there would another difficulty second court failed to define theory or to that such testimony apply *10 COURT. SUPREME IN THE 1124 State v. committed, charged offence nature have as well in a produced such might way
jury must convict of either they minds that on their impression of man- could not convict They murder or manslaughter. instructions upon because slaughter specific from the “should believe were they that point were and deceased engaged evidence prisoner slew the and that prisoner sudden fight, a quarrel There deceased, be being then would manslaughter.” a between actual no evidence fight dark as to were deceased, left grope not satisfied State in case were by their they duty acted doubt reasonable beyond mind. If formed distinctly fixed purpose or there was concluded that quarrel argument, they by disagreeable of sudden engendered heat passion, have been suffi- would not provocation which language, of man- within the definition the offence cient bring our crime, nnder the construction given slaughter, elsewhere, was murder in the second degree. Court and Lewis, v. v. C., 902; 114 N. at State 74 Fuller, State p. v. Mo., 224; and State Wittosky, supra: Ellis 524. which is Boyle, p. Every killing supra, common-law must embraced in the of murder at definition unless, b'e classified as murder in the second degree, excited hand, the one it is done the heat of passion assault, at common-law some an which act, done sufficient to reduce the offence manslaughter, other, or, but not on the is either recklessly; carelessly, of a fixed and distinctly result premeditated mind, within the classes formed or falls specifically declared in the constitute murder statute In Wharton, Section Sections 377 - 388. supra, intent, there is a Wharton that where says specific TERM, FEBRUARY 0.] *11 Thomas. to kill barm, but to do it is in the not murder groat bodily first but in the second insensi- one killing by ble from drink, or in the abortion, are attempt produce Ibid., mentioned illustrations. Sections 389 who was examined for the State testified physician that her was death not but ensued caused by drowning her when neck was in some broken. He instantly way further testified that there was the were lungs collapsed no water in the from that which facts he inferred body, the she was not drowned. It not post- does that appear mortem wounds or disclosed evidence of any examination bruises her or there was tend- that upon person, testimony to show other than the fatal ing wound any injury If was neck. such it tliere evidence was incumbent on the State or the to send since was it judge up, charge to on the the whole excepted that .of the ground testimony did not tend to show that of mur- was prisoner der half mile The witnesses .were across away water, that they while testified they heard cries and the a bet- noise of blows —the water being ter medium for than of them sound the air —none conveying undertakes if instrument, with what say any, accuracy other than hands, his death. used to cause prisoner True, one of saw them with overboard go struggle and another heard a sound like striking did but he he saw to state that fishing pole, pretend used, used, instrument did what or, it not appear were its dimensions so that the court could upon pass whether was There is no question deadly weapon. evidence, therefore, that a at all. was used deadly weapon For that the evidence it be true that aught appears may struck the blows —the sound which was heard —with fists and knocked her down the end True, or side of the so as boat to break her neck. there IN SUPEEME COURT. THE continued to beat her to show was evidence tending also testimony several minutes. There an before the killing, two were argument engaged walk life in their humble argument amongst people Coun- used in the sense sometimes quarrel dispute. insisted that to be well have jury ought sel might from inferred allowed to whether they testimony say aroused dis- by.a anger suddenly prisoner’s common-law, advance of civiliza- While pute. administer husbands who mod- has *12 tion, ceased to protect wives, cannot divest our- to their we erate chastisement human nature and of the cus- of of selves that knowledge who still classes of sometimes toms certain people amongst the common-law of correction right insist upon asserting It not of Blackstone. is inconsis- did the time they evidence, if with of the with some any tent phases, aspect and of more refined infer that the unfortunate (to to persons culture) brutal and killing, tastes apparently higher but fixed under done not in the furtherance of any purpose vague influence of by dispute. engendered anger is the correction one that made while threat administering if to show would, it can be relied prove anything, such who in fact harbored no mother, design, that many been diverted from kill child had she not intended to her It matter of common observation that is a her purpose. -ions often used stage coarse are every such expres of is correction what deemed wholesome administration to that his We not hold are prepared parents. ignorant m would knock her came, he first that “he when saying, he would head,” when that later, she crying, hush, did kill if she were and her” takfe something life, to when in the of a intent take such evidence specific shown have been no to deadly weapon subsequent killing evidence that she nor there was used, does appear FEBRUARY 1896. TERM, C.] .State
bad received wound must have been inflicted any There evidence, instrument. any must-be said the Court of whose Supreme construction Pennsylvania, statute we have v. followed, heretofore Gadberry, (State C.N. that at the time defendant did the act 811.) he thought his to kill had the deceased and time think D-, would execute it. 58 Pa. In Com. St., case, Delaware Hamilton, Cases, Hous. Cr. (State 101,) where the of the defendant what con guilt depended upon deliberation, stituted the evidence was premeditation defendant in a witness were room only defendant, when after his striking wife drinking into nextrocm, her into the latter room sending passed fist, several times struck on the head that she died several after from the effects of the blows, days The Court held that the were instructed to properly convict of murder the second found that they she died of the blows. So repeated aspect there was evidence, error, take the view favora most of the ble charge, omitting explain theory murder application testimony *13 when second the counsel was prisoner’s maintaining be that the to of no crime. convicted ought prisoner higher there be a For this error must venire novo. de Trial.
New J., The court (dissenting): prayed prisoner Clark, “if they believed evidence be charge true, it would not verdict of murder in the first justify do, This the and, court refused to such refusal degree.” to, raises the record. being only excepted exception It does not that the entire was sent charge up, appear Court, it is to be' under former of this presumed, rulings that so much of as was sent was neces- only up charge IN THE SUPREME COURT. bears The sent that exception. charge np
sai-y point view, submitted as it shows that out this judge in the first three of murder case to the aspects no evi- being and second manslaughter degree —there he sends dence of self-defense —and up part murder what constitutes degree as to charge the full as to to send full, charge not up (it being necessary The charge the second degree manslaughter). to, as to murder excepted degree no indeed exception. ground presents just not have should being judge only exception to the submitted the aspect of the case if evidence on that aspect there was any jury, when taken most be sufficient presented jury, below should strongly against prisoner, judgment be sustained. were in and his wife was that
The evidence prisoner he beating she was boat; screaming like which sounded beating fishing with something don’t hush her, If that he was heard to say you pole; other witnesses and kill Two I will take you.” something in the head.” would knock her he'“ heard the say prisoner heard, lick was then two that, a after heavy “Directly licks, then the picked añore stooped, heavy overboard, looked around then and threw her wife up ” the and came down where unloosed his boat so, minute or his wife had fallen said to them that were. He witnesses said, No, had killed her he asked he When overboard. beaten on her and denied having had not his hands put that when he first witness testified passed Another her.” before he commenced wife, and his apparently knock her her, said he would the prisoner beating *14 showed that the wife’s examination head. post-mortem death had instantaneously and that her broken, neck was TERM, FEBRUARY O.] resulted therefrom. It would seem that this was surely evidence sufficient to on the of mur- go charge iu der t'he first The man he will declares knock his degree. ; wife in the head he then her with a begins beating fishing threatens she does not hush he will kill pole; her, and that he will knock in the head; her then three blows heavy heard, are rate the woman’s possibly paddle; neck is ; broken husband throws her overboard, body denies so, done and even beaten her, having having when the is found it is shown that the violence used body on the woman was sufficient to break neck. Here there are threats with some repeated instrument, heavy and a conceal- deadly subsequent ment. this was evidence Surely sufficient togo thejury (cid:127) of murder And sole matter com- is plained that the left that by appellant judge aspect of the case to thejury.
It be that the evidence as a would be suffi- may whole (cid:127)cient with some of the persons aspect mitigate crime ato lesser It offence. be it was a may urged if the killed his wife because she was palliation true, still, with him. If this could be whether arguing that was matter of "cause of fact be also that It the threats used thejury. may his brutal conduct of his condi- prisoner, person tion, did not mean as much as such words conduct by others. But are to the court, pass jury, that. It is the to draw alone province inference of fact. There is no technical construction to be such words or if used conduct, placed npon by people of life, certain condition which makes their meaning law be .a matter of determined the court below, here, and therefore to be reviewed for we cannot subject Our the evidence. review weigh province simply *15 THE SUPREME COURT. IN threats no law. There being correct errors of blows, a then shown, a cruel beating, heavy provocation neck, a the victim’s break violence sufficient killing by and all this a crime, of the and denial by concealment his inferior wife, man strength, his presumably upon murder in the first all amounted to degree, whether these a was eminently in the second manslaughter, to sub- To have refused for the to determine. matter would have murder mit the oí degree phase of the a invasion of the been province jury. grave was verdict, there no said, unanimous have by hav- evidence, of the doubt, reasonable upon of the crime of been ing well the evidence as who also heard The presiding judge, had the of the who, like the benefit as the jury, jury, a far witnesses, and hence better of the opportun- bearing of the truth of the transaction correct idea to form ity Court, reading testimony than this paper, possibly cannot, set the verdict aside. We have, refused to could evidence, declare without essaying weigh or that the evidence verdict wrong, judge aside. to set the verdict discretion erred refusing the consideration is limited the record to Our province evidence of whether there was single question our there go jury, A man who and our end. brutally power duty legitimate law that we his wife is not such favorite of the bills all that error should contrary precedent, presume, the court below in matter clearly committed by record and not on the complained appearing counsel or his by any exception. opi I ion. MONTGOMERY,J.: concur the dissenting