Summary
In Jackson, discussed above, this Court stated that to avoid violating a defendant's right to a unanimous jury verdict in a multiple acts case, the state should be required to "elect" the specific act on which it asks the jury to convict.
Summary of this case from State v. Celis-GarciaOpinion
01-09-1912
STATE v. JACKSON et al.
Josiah O. Wolcott, Deputy Atty. Gen., for the State. William G. Jones and Richard S. Rodney, for the defendants.
Samuel Jackson and Ezekiel George were indicted for assault with intent to commitmurder. Verdict of guilty as to both defendants.
Argued before CONRAD and WOOLLEY, JJ.
Josiah O. Wolcott, Deputy Atty. Gen., for the State.
William G. Jones and Richard S. Rodney, for the defendants.
WOOLLEY, J. (charging the jury). Gentlemen of the jury: The prisoners at the bar are charged with having committed an assault upon one Peter Drejko, the prosecuting witness, with intent him, the said Drejko, to murder. This charge embraces not only an assault, which is an attempt with force and violence to do injury to the person of another, but also an intent to commit murder, to convict the prisoner of which it is necessary for the state to prove that the assault was committed by the prisoners, that it was committed with the intent to murder Drejko, the prosecuting witness, and that, if Drejko had died from the effects of the injury inflicted, then the prisoners would have been guilty of murder.
The intent to commit murder is an essential ingredient of the crime, and is the element which distinguishes it from assaults of other characters. It may be shown either by direct evidence or by the acts and conduct of the accused from which the murderous intent may rationally and reasonably be inferred. It is a principle of law that every man is presumed to intend the natural and probable consequences of his own voluntary and willful act, so that from the voluntary use of a deadly weapon, as a gun, pistol, or heavy club, by one against' another in an unlawful manner, or in a way or under circumstances that directly tend to great bodily harm or that imperil human life, the state may prove and the jury infer the intent to murder.
Before you can find the prisoners guilty of assault with intent to commit murder, you must also find that, had Drejko died from the effects of the injuries received or attempted, the prisoners would have been guilty of the crime of murder. It is therefore necessary to instruct you with respect to that crime.
The crime of murder is the unlawful killing of a human creature in being with malice aforethought, either express or implied. To convict of this crime it is as important to prove the presence of malice as the act of killing. Malice may be proved by direct evidence when it is express or it may be implied from any unlawful act, such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. The deliberate selection and use of a deadly weapon is evidence of malice; and where malice exists, together with the killing, the crime of murder is complete.
Manslaughter, however, is the unlawful killing of another without malice, and is committed where one in a sudden affray, in the heat of blood or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. Therefore, if you believe the prisoners' acts were without malice and that manslaughter and not murder would have been the crime of which the prisoners would have been guilty, had death ensued to the prosecuting witness, the prisoners cannot be found guilty of the intent to commit murder.
Malice is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be, for the law considers that he who does a cruel act voluntarily does it maliciously. And whenever such an act from which death ensues is proven by the prosecution unaccompanied by circumstances of justification, excuse or mitigation, the law presumes that the homicide was committed with malice, and it is thereupon incumbent upon the accused to show by evidence that the killing was not malicious and therefore does not amount to murder.
In this case each of the prisoners made written confessions, which have been offered and admitted in evidence, and which recount his own acts and to an extent the acts of the other, with their consequent implications. These confessions respectively constitute evidence only against him who made them, and not against his fellow, who cannot be bound or hurt by the statement of his associate made neither in his presence nor under oath in a judicial proceeding.
All of the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent of crime until proven guilty. It therefore devolves upon the state to maintain its issue and prove the guilt of the prisoner beyond a reasonable doubt.
Reasonable doubt is an expression rather well understood but not easily defined. It is not a mere possible doubt, because everything relating to human affairs is open to some possible, imaginary or speculative doubt. It is a real and substantial doubt founded in reason and such as men of intelligence and discernment may entertain, and, if necessary, be able to express or define, after a careful consideration of all the evidence in the case.
If, after considering all of the evidence in the case, and reconciling it where it is conflicting, by giving credit to that which is most worthy of credit and rejecting that which is least worthy of credit, having regard to the intelligence, fairness and bias of the witnesses, you entertain a reasonable doubt of the guilt of the prisoners that doubt should be resolved in their favor and your verdict should be not guilty.
If, however, you believe beyond a reasonable doubt that the prisoners did commit the assault, but are not satisfied that theyhad an intent to commit murder, your verdict should be not guilty in manner and form as they stand indicted, but guilty of assault only; but if you believe the prisoners not only committed the alleged assault, but that it was done maliciously and with the intention to murder Drejko, and that had Drejko died from the effects of the injuries inflicted, the crime would have been murder, then your verdict should be guilty in manner and form as the prisoners stand indicted.
As there are two prisoners, charged with participation in the alleged assault, it is possible that you may find that they participated, if at all, in different ways, thereby requiring different verdicts.
Therefore we say to you, by applying the Law to the evidence that relates jointly or severally to the two prisoners, you may find one or both of them not guilty, or one or both of them guilty as indicted or guilty of assault only.
If you find that one of the prisoners assaulted Drejko and that the other did not assault him but was then and there present, aiding, abetting or counseling the one who committed the act, he who so aided is deemed in law an accomplice and equally criminal with his principal and should be found guilty of the same offense, whether that be guilty of assault with intent to murder or guilty of assault only.
Verdict, both guilty.