4 Park. Cr. 619 | N.Y. Sup. Ct. | 1859
The death of McCarty was caused by drowning. It was the indirect result of the act of the prisoner Wilson. The blow inflicted would not have produced death, but it caused temporary insensibility, and when McCarty fell, or was knocked into the canal by its force, he was unable to -help himself, and was drowned. The questions on the trial were: 1st. Was Wilson guilty of any offence; and 2d. If so, was it murder or manslaughter in one of the degrees defined by statute ? These were questions for the jury, under proper instructions from the court.
It appears from the bill of exceptions, that the presiding judge prefaced his charge to the jury by the statement that it was not claimed by the prisoner’s counsel that the defendant could be convicted either of manslaughter in the first or second
It is undoubtedly true, that there was nothing in the circumstances under which the death was effected, to bring the case within the statute definitions of manslaughter in the first or second degrees, unless it be assumed that the sixth section of the statute defining manslaughter in the first degree, is applicable to a case where a party causing death without design, is engaged in an assault and battery. Some judges have taken this position, whilst others have held that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (Darry v. The People, 2 Park. Cr. R., 634; The People v. Butler, 3 Id., 377; The People v. Rector, 19 Wend., 605.) But was the proposition that, if the prisoner was guilty of any crime, it was either murder or manslaughter in the third degree, strictly correct? Of this I entertain serious doubt. The statute defines what shall be murder, and also four degrees of manslaughter. It also declares what shall be justifiable or excusable homicide. Manslaughter in the third degree is the killing of another in the heat of passion, without the design to effect death, by a dangerous weapon, in any case except such wherein the killing is declared to be justifiable or excusable.
In the fourth degree, it is defined to be the involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion, in any other cases than such as are declared by the statute to be excusable homicide. After defining murder, justifiable and excusable homicide, and the four degrees of manslaughter, it is provided that “ every other killing of a human being, by the act, procurement or culpable | negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree. (2 B. S., 662, §19.)
It is now well settled that, under our statutes, to constitute the offence of murder, there must be a premeditated design to effect the death of the person killed, or, in other words, an intention to kill. The design may be long meditated, or it may be conceived at the moment the fatal blow is given; but it must be found to exist, else it is not murder. There must be, what the common law did not require, the existence of an actual intention to kill. In this case, unless Wilson, when he pushed or knocked McCarty overboard from the canal boat, precipitating him into the water, formed the design, at the instant, to kill the latter, it was not murder. Such intention may be inferred from the circumstances under which the violence is inflicted, and sometimes from the act itself, for men are
Mow, that the destruction of the life of McCarty resulted from the act of Wilson was manifest, but certain it is that it was not murder, unless at the time of striking the blow he designed to kill him. This was a controlling question in the case in characterizing the act as murder, and it was a fact that the jury must find before a conviction could legally be had. Indeed, in my view, it was the principal question. The jury might have found the actual intention to kill, from the circum- f stances attending the act, or inferred it from the act itself, if a murderous weapon was used, or the blow was inflicted in a dangerous place, or the natural and inevitable consequences of such blow was to produce insensibility, and from McCarty’s position on the boat to precipitate him into the water in that state. But instead of saying to the jury that they must find the actual intention to kill at the time of inflicting the blow^' which precipitated McCarty into the water, before they could convict of murder. I cannot but think that the charge of the judge was calculated to mislead them, if nothing more, by the abstract propositions (if they are to be so called), enunciated in this part of it. But the judge did not intend them as abstract
- In the judge’s explanation to the jury of the statutory offence of manslaughter in the third degree, he stated “ that the ‘heat of passion’ means a quarrel—an altercation in which the party killed is immediately concerned; that is, the ‘ heat of passion ’ must not be all on one side; there must be sufficient cause for it.” And again, after the jury had returned into court, and inquired whether they could find a verdict in any other form than guilty or not guilty, the presiding judge further charged, among other things, in these words: “ It is questionable whether words even of the most aggravated character would be allowed to produce the heat of passion meant by the statute, which would reduce the grade of the offence.” «The idea sought by the judge to be conveyed to the jury in his explanation of the term “heat of passion,” in his first charge, probably was, that if in a paroxysm of unprovoked anger one kill another, or instigated by brutal passion, not excited by such other, the assailant kills his victim, it is not that “ heat of passion ” which forms one of the statutory ele^rnents of manslaughter. As a principle, this was undoubtedly correct. If the intention to kill exists, it is not the less murder that the killing occurred under the excitement of unpro- . voked and brutal passion. I cannot but think, however, that the judge was unfortunate in the use of terms to convey the idea to the jury. Is it always necessary to the existence of that “ heat of passion” contemplated by the statute, that there
Upon the trial, the coroner, who was a physician, and who had held the inquest and made the post-mortem examination, was called as a witness. He described with particularity the wound discovered on the right side of the head of McCarty, and expressed the opinion that only one blow was given, and that blow produced concussion of the brain, causing insensibility. He expressed the further, opinion that McCarty was by the blow rendered insensible so that he could not help himself, and he drowned in the water of the canal. The prosecution then put to him the following question: From your examination of the wound that you have described, what kind of an instrument, was it caused by, in your opinion ? This question was objected to as not being the subject matter
The same question was put to another physician who assisted in the post-mortem examination, the same objection taken and overruled, and his answer was, “I think it was caused by some blunt instrument like the head of an axe or hammer.” I am not satisfied that the court ruled correctly in this respect, and I think it would be difficult to sustain the ruling upon principle. The kind of instrument used was of course a material element in showing malice aforethought; but the question here is, was the evidence admitted to show it legal and competent ? Whether any, and what kind of instrument was used, was a fact for the jury to find. Physicians are allowed to express opinions on matters pertaining to their particular science or profession, for the reason that, from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment. On a subject not of science or skill, or involving no peculiar experience or knowledge, opinions of witnesses are inadmissible. To answer properly whether the wound discovered on McCarty’s head was produced by a sharp or blunt weapon, required no peculiar scientific knowledge; and after the physicians had described minutely the character of the wound and the indentation of the skull bone, and expressed the opinion that concussion of the brain was produced by the blow, the jury were just as competent as these professional experts to find or guess what kind of a weapon caused the skull bone to be pressed in as described, and whether it was blunt or otherwise. It is obvious that a great variety of weapons would produce such an injury as was found on the head of the deceased; and if there was to be any guessing on the subject, the jury, and not the witness, was alone competent to do it. From the description given of the wound, it was just as manifest to the jury as to the witness that it was caused by some blunt and not sharp weapon. But this was not the purpose of the inquiry. That
I am of the opinion that there should be a new trial. One thing is quite manifest, that the prisoner did not intend to destroy the life of McCarty by drowning him; but when he struck the blow that cast the latter into the water, if the design existed to effect death, it would be murder. If the killing was not actually intended, it could be but manslaughter.
The prisoner was entitled to have this question of intent distinctly presented to the jury; and if, from the evidence, they found it to have existed 'at the time of raising the weapon and striking the blow, they might properly convict him of the higher offence. So also, if the jury found that under
The judgment of the Oyer and Terminer should be reversed, • and a new trial ordered.
Hogeboom, J., concurred; Gould, J., dissented.
Judgment reversed.