17 Iowa 138 | Iowa | 1864
That deceased was killed on the night of the 7th of August, 1863, there is no controversy. It is equally clear from the testimony that he was at the time on the premises of the prisoner, in the act of stealing melons, or in eating those which, with others, he had pulled and removed from the vines. The testimony also satisfactorily establishes that the mortal wound was inflicted on the head and neck, by a discharge from a gun then held and fired by the prisoner, and that the deceased lived for about one hour after being thus wounded. Thus much for the admitted or well established facts, before proceeding to the consideration of the questions made by counsel in their argument. And we may premise that we shall examine the questions thus made, without undertaking to discuss in detail the several errors assigned.
We need hardly say that the reasoning which would exclude the conversation, before the prisoner left for the physician, would apply with even more weight to what occurred when the witness met them coming to the house. This testimony was not offered to contradict what the witness had said. Indeed it is not pretended that it had any reference whatever to the death of Haynes. Tor aught that appears, it related to another and entirely independent transaction. In excluding it, we certainly cannot say the court erred.
II. It is claimed that the instructions as given and refused, gave wrong definitions of the crime of manslaughter, and were severally, and as a whole, not applicable to the facts given in evidence. The instructions upon this subject were as follows: First, If the jury find that the defendant, believing a person to be in his melon patch stealing melons, and that he, not intending to kill, but carelessly and recklessly fired his gun, loaded with a deadly charge, in the direction he supposed the person to be, and killed the deceased, then he is guilty of manslaughter. Second, It is unlawful for any one to shoot .at or kill a trespasser, or one stealing from his farm, before making other and milder efforts to prevent it, be this trespass or stealing in the night or daytime. Third, If, from the evidence, you find that defendant went out in a sudden passion, with a gun loaded with a deadly charge, intending to shoot any person stealing melons from his patch, and never intending to kill, but only to injure the deceased; but he did inflict wounds which produced death — even such finding will not make the crime less than manslaughter; and if you find that there was time for the passion to subside before the shooting, or that there was'an intention to kill, or do great bodily harm, it would be murder in the second degree.
The following instruction asked by defendant was given as modified (modification included in brackets): “If you believe that the deceased, with others, was engaged in stealing defendant’s melons in the night time; and the defendant, without any intention or purpose of injuring the deceased, or any other person, but for the sole purpose of frightening the depredators, and by mere accident, and without intent to injure any one, fired off his gun and pro
We have thus fully stated the material instructions given and refused, that the positions of the respective parties and the views of the case entertained by the court, may be the more readily seen. The statement of a few general propositions will be sufficient to show how little cause appellant has to complain.
In the oft-quoted case, supra (4 Mass., 391), (which was certainly in view of the law, as given by Parsons, Ch. J., a much more favorable case for the prisoner upon the present question than the one before us), this rule was announced. “When the trespass is brought against the property of another, not his dwelling house, it is not a provocation to warrant the owner in using a deadly weapon; and if he do, and with it, kill the trespasser, this will be murder, because it is a degree of violence beyond the degree of the provocation; but if the beating be with an instrument, and in a manner not likely to kill, and the trespasser should, notwithstanding, happen to be killed, it will be no more than manslaughter.” And see further, Cokeley v. The State, 4 Iowa, 477; and State v. Shelleday, 8 Id., 477, and the cases there cited. In this case the prisoner used a deadly weapon, the deceased was not in the commission of a known felony, such as murder, rape, burglary and the like (1 East P. C., 271), the prisoner made no use of other or milder means to prevent the trespass or drive away the depredators, the gun was fired intentionally and not by accident (whether at the deceased, is a question we shall subsequently consider), and thus far, upoq- well settled
It is not pretended that the prisoner did not intend to fire the gun; he knew that it was loaded with powder and lead. The shot took effect upon the head and neck of the deceased, inflicting, according to the testimony, from six to twenty-thrée wounds. He was advised that persons were in the melon patch; he left the house with the gun, intending, at least, to drive or frighten them away. After reaching the ground, it was several minutes before the gun was fired; he had ample time for reflection and deliberation; he did not act from the sudden impulse of passion. Under such circumstances, it seems to us that the instruction asked by the defendant, and given, with the modification, was as favorable as he had any reason to ask. Under this, the jury could well infér that they were to acquit, if “ the gun was not intended to be aimed at, or in the direction of the deceased or other persons.” The other instruction, however, goes even further; and, in effect, makes the pointing or discharging of a gun “point blank” at another, excusable or not criminal, “ unless done in an unlawful act, or with an unlawful. intention.” Such a proposition loses sight of, and ignores the following and analogous rules: If one fires a gun recklessly or heedlessly, he will not be ' excused; and his offense will be at least manslaughter,
We remark, in conclusion, in this part of the case, that a person, in the commission of' a crime, may determine to do the wrong, or, act with such indifference as almost, if not quite, “ supply the place of the more positive mental condition.” Applying this proposition, thus briefly stated, to cases of homicide, and the rule is, that every act of gross carelessness, even in the performance of what is lawful, and, a fortiori, of what is not lawful, and every negligent omission of a legal duty, whereby death ensues, is indicta-' ble, either as murder or manslaughter. Rex v. Carr, 8 C. & Payne, 163; 2 Archb., 9; U. S. v. Freeman, 4 Mason, 505.) In the light of these principles, we need do more than say, that the first instruction asked by defendant was pro
III. The court, in the charge in chief, uses this language: “ Boys have no right to enter a melon patch of another, and help themselves to his melons without his consent; but it would be a reproach to the laws of any state or country, to hold that for such an act, the owner has a right, without notice or warning, to shoot them down and take their lives.” It is claimed that this remark was out of the case, and strongly tended to give the minds of the jury a wrong impression and unjust prejudice. And, in the same connection, it is urged that, under the evidence, and the law applicable, the prisoner was improperly convicted. In neither of these positions can we concur. The charge shows a proper appreciation of the sacredness of human life, and reflects the mind of a tribunal justly impressed with the necessity of fairly and fearlessly administering the law. There is no scintilla of evidence that the deceased and his comrade knew, or had any intimation that the prisoner was near them, or that he contemplated their injury. It is true, they were engaged in an unlawful act. The law has, however, given to persons thus trespassed upon, other and ample remedies for all injuries inflicted. Not only so, but the law demands, in consonance with the plainest dictates of reason and humanity — in view of the magnitude of the crime, and the sacredness of human life — that the party injured shall resort to other means, shall adopt other methods of checking the trespass; and will not allow him thus to take life. And it truly would be a reproach to the law, if a person, because of such a trespass, could be protected in the commission of so great a wrong. If so, the court did not transcend its duty in so saying to the jury. The law ought to be vindicated. No innocent man ought
But, without extending the argument, we remark, in conclusion, that we see nothing in the record to indicate that the prisoner did not have a fair and impartial trial. What we have already' said sufficiently indicates our general views of the case. The jury, in our opinion, could not consistently have dealt more leniently with him than they did.
Affirmed.