Homicide. Murder. Evidence, Remoteness, Presumptions and burden of proof, Opinion: experts. Practice, Criminal, Conduct of trial, Exceptions, Verdict, Proof of malice. Intoxication.
At the trial of an indictment for murder in the second degree, where it appeared that the defendant had shot and killed the deceased as he was ascending a staircase to a tenement occupied by the defendant, and the defendant had testified that before the shooting he had been drinking heavily, that he did not see any one when he shot but thought there were burglars in the house, and that he was looking upstairs where he thought the burglars were and fired downward, intending to frighten them, the defendant offered to prove by his wife that within a year before the shooting she had seen a burglar in the house and had told the defendant of it, and to prove by a person who lived in an adjoining house that four years before the shooting one thousand dollars worth of jewelry had been taken by burglars from that house, that this was a fact notorious in the neighborhood and had been brought to the knowledge of the defendant, and that the defendant when drunk always feared burglars or was suspicious of there being burglars in the house. The judge excluded the evidence of the previous burglaries or attempted burglaries and of the defendant's knowledge of them. Held, that, even if such evidence could have been considered upon the question of the defendant's state of mind at the time of the homicide, in the absence of anything to show a continuous state of mind or a continuous course of conduct, the evidence of these disconnected matters properly might be excluded as too remote.
In a trial for murder in the second degree an expert on insanity, who had testified for the government, on his cross-examination was asked a hypothetical question concluding with the words "In your opinion, was the defendant at the time of the shooting under these circumstances of sound mind." The defendant's attorney insisted upon a direct answer. The witness refused to give such an answer unless one element was taken out of the question. The defendant's attorney refused to do this, and the presiding judge, against the defendant's objection, allowed the witness "to answer and make explanation." It did not appear what explanation the witness made. After making it, he answered that the defendant in his opinion was of sound mind and was responsible for his act. Held, that the allowance of the explanation was a matter wholly within the discretion of the presiding judge and was not subject to exception.
Exceptions taken at a trial for murder, which are based upon a possible finding that the defendant is guilty of manslaughter only, are made immaterial by a verdict of guilty of murder in the second degree.
At the trial of an indictment for murder in the second degree by shooting, it is proper to refuse a request for a ruling that, "if the jury find that the defendant, by firing the gun, under the circumstances, did not intend to shoot the deceased or anybody else, but merely to frighten strangers he believed to be in the house, then the defendant is not guilty of the crime of manslaughter," and also to refuse a request to rule that if the jury find that the defendant "unintentionally shot the deceased, he is not guilty of manslaughter," because these statements do not exclude the existence of criminal recklessness by which manslaughter or even murder may be committed.
At the trial of an indictment for murder in the second degree by shooting, it is proper to refuse a request for a ruling that "the jury will not be justified in finding the defendant guilty of manslaughter unless they are satisfied beyond a reasonable doubt that in firing the gun he intended to shoot the deceased, and without sufficient excuse or justification," because this statement overlooks the fact that a specific intention to kill is not necessary to manslaughter or even in every case to murder.
At the trial of an indictment for murder in the second degree by shooting, the defendant asked for an instruction that "There is no presumption in this case that the defendant, in firing the gun, intended to shoot the deceased or anybody else." The judge instructed the jury that the burden was upon the government to prove beyond reasonable doubt every essential point in its case, and "that they were to find the intent of the defendant from all the facts, including what he said and his use of the gun." Held, that the instruction given substantially complied with the request, necessarily excluding from the consideration of the jury any presumption that in firing the gun the defendant intended to shoot the deceased or any one else, and leaving the jury the right to infer that the defendant intended the natural consequences of whatever he did intelligently.
At the trial of an indictment for murder in the second degree by shooting, where it appeared that the defendant shot the deceased as he was ascending a stairway toward a landing on which the defendant stood, the defendant asked the judge to instruct the jury that it must appear to the satisfaction of the jury beyond a reasonable doubt that the defendant fired the gun intending to shoot the deceased, that if the defendant had no motive for killing the deceased and did not know that it was he who was on the stairs, there was no evidence of malice and the defendant was not guilty of the crime charged in the indictment, and that there was no evidence in the case warranting the jury in finding "that at the time of the shooting the defendant knew and intentionally took the life of the deceased." The presiding judge refused to give these instructions. Held, that the refusal was right; that, if the jury found on the evidence in the case that the defendant intentionally shot and killed the deceased without any justification whatever, they had a right also to find that the defendant acted with malice, and that it was immaterial whether he had or had not recognized the deceased or knew who it was on the stairs.
Where at the trial of an indictment for murder in the second degree by shooting, the jury return a verdict of guilty, and it appears that under the instructions given by the presiding judge they must have found it proved beyond a reasonable doubt that the defendant with malice aforethought fired upon the deceased intending to wound or kill him, without any other justifying or excusing circumstances than such as may have arisen from his voluntary intoxication, exceptions to the refusal by the presiding judge of requests for instructions based on and assuming alleged facts which are negatived by the verdict, need not be considered by this court, and it is not necessary to determine whether any of the instructions thus requested should have been refused for the additional reason that there was no evidence to support them.
An instruction of the presiding judge at the trial of an indictment for murder in the second degree that insanity, whether resulting from intoxication or from any other cause, would prevent criminal responsibility, but that intoxication would not, was stated not to be open to objection, although it was not passed upon because no exception to it was taken.
It may be true that, if one who has committed a homicide, which otherwise would have been murder in the first degree, was at the time of his act so far overcome by intoxicating liquor as to be mentally incapable of deliberate premeditation, he cannot be convicted of murder in the first degree, but, if this is so, it does not prevent him from being convicted of murder in the second degree.
SHELDON, J.
The evidence as to the previous burglaries, or attempted burglaries, in the defendant's house within a year before the commission of the homicide, and in Lindley's house four years before that time, was rightly excluded. It could have no proper tendency to show any probability of another burglary being committed in the defendant's house at the time in question. It had no legitimate bearing upon any issue involved in the case. Commonwealth v. Abbott, 130 Mass. 472. Even if it could have been considered upon the question of the defendant's state of mind at the time of the homicide, evidence of these detached facts might well be excluded as too remote. Commonwealth v. Trefethen, 157 Mass. 180, 183, 184. Lane v. Moore, 151 Mass. 87, 90, 91. This was evidence merely of two unconnected matters, three years apart, the latest being about a year before the time in question; there was nothing to show a continuous state of mind or a continued course of conduct, as in Commonwealth v. Holmes, 157 Mass. 233, 240.
The court rightly allowed Dr. Jelly, when the hypothetical question stated in the exceptions was put to him, "to answer and make explanation." This was a matter wholly within the discretion of the court. Demerritt v. Randall, 116 Mass. 331. Commonwealth v. Kelly, 113 Mass. 453. Miller v. Smith, 112 Mass. 470, 476. Root v. Boston Elevated Railway, 183 Mass. 418. It does not appear what explanation the witness made, and we cannot presume that it was at all prejudicial to the defendant. His answer to the question was responsive and to the point.
The other exceptions are to the refusal of certain requests for instructions. Some parts of the charge to the jury are stated in the bill of exceptions, the rest not being set out; but no exceptions were saved to the instructions given, and it now must be presumed that these were full and accurate.
The eighth, ninth and tenth requests were directed to a possible finding that the defendant was guilty of manslaughter only. They have become immaterial by the verdict, and need not be especially considered. They could not have been given in any event. The eighth and tenth requests did not exclude the existence of criminal recklessness; the ninth overlooked the fact that a specific intention to kill is not necessary to manslaughter, or even in every case, to murder. See Commonwealth v. Webster, 5 Cush. 295, 304; Commonwealth v. Hawkins, 157 Mass. 551, 553. It is now as fully recognized "that a man may commit murder or manslaughter by doing otherwise lawful acts recklessly as that he may by doing acts unlawful for independent reasons, from which death accidentally ensues." Commonwealth v. Pierce, 138 Mass. 165, 175.
The second and twelfth requests were given; and we are of opinion that the first was given in substance. The jury were told that the burden was upon the government to prove beyond reasonable doubt every essential point in its case, and that they were to find the intent of the defendant from all the facts, including what he said and his use of the gun. This necessarily excluded from the consideration of the jury any presumption that in firing the gun he intended to shoot the deceased or any one else. Indeed it does not appear that the existence of any such presumption was asserted by the prosecution. But it needs no citation of authorities to show that the jury had a right to infer that the defendant intended the natural consequences of whatever he intelligently did.
The third, fourth and seventh requests could not have been given. As has been already pointed out, murder may be committed without any actual intent, either to kill or to do grievous bodily harm. Commonwealth v. Chance, 174 Mass. 245, 252. There was evidence upon which the jury had a right to find that the defendant intentionally shot and killed the deceased without any justification whatever. If they did so find, they had a right to find also that the defendant acted with malice. Commonwealth v. Fox, 7 Gray, 585. In that case it would not be material whether he had or had not recognized the deceased.
As to the fifth, sixth, seventh, fourteenth, fifteenth and sixteenth requests, it is enough to say that without intimating that these correctly stated the law, under the instructions given to the jury they must have found it proved beyond a reasonable doubt that the defendant with malice aforethought fired upon the deceased intending to wound or kill him, without any other justifying or excusing circumstances than such as may have arisen from his voluntary intoxication. This finding negatives the facts assumed in the requests we are now considering. It is not necessary to consider whether any of them should have been refused for the additional reason that there was no evidence to support them. The defendant was not aggrieved by their refusal.
Upon the thirteenth request the judge ruled that insanity, whether resulting from intoxication or from any other cause, would prevent criminal responsibility, but that intoxication would not. He also read to the jury quotations from the opinions in Choice v. State, 31 Ga. 424, 472; Commonwealth v. Hawkins, 3 Gray, 463, 466; Commonwealth v. Malone, 114 Mass. 295, 298; and Springfield v. State, 96 Ala. 81, 86. We need not however especially consider the instructions given; for, as we have said before, they were not excepted to; nor do we see any ground upon which they were open to objection. The rights of the defendant were fully protected, and the request as presented was rightly refused. See, beside the cases already cited, Commonwealth v. Gilbert, 165 Mass. 45; United States v. Drew, 5 Mason, 28; Kenny v. People, 31 N.Y. 330; Boswell v. Commonwealth, 20 Grat. 860; Shannahan v. Commonwealth, 8 Bush, 463; State v. Cross, 27 Mo. 332; Bennett v. State, Mart. Y. 133; Cornwell v. State, Mart. Y. 147; Beasley v. State, 50 Ala. 149. While drunkenness is no excuse or mitigation of a crime committed under its influence, it may yet be true that if one who has committed a homicide which otherwise would be murder in the first degree was so far overcome by intoxicating liquours as to be mentally incapable of deliberate premeditation, he cannot have acted with deliberately premeditated malice aforethought and so cannot be convicted of murder in the first degree upon the ground of such malice. State v. Johnson, 41 Conn. 584. But no such question is presented here. This defendant was indicted and has been convicted of murder in the second degree only.
Exceptions overruled.