Opinion
October Term, 1852
R.H. Morris, for the prisoner. N.B. Blunt, for plaintiffs in error. R.H. Morris, for the prisoner.
The defendant was convicted of a murder in the New York oyer and terminer, and sentenced to be hanged on the 21st day of November 1851. At his trial a bill of exceptions was taken and the case was carried by writ of error to the supreme court, where in May term, 1852, the judgment was reversed and a new trial ordered. Upon this judgment of reversal a writ of error has been brought in the name of the people to this court; and we are moved to dismiss the writ upon several grounds.
The first ground is, that by the record the judgment of reversal appears to have been rendered on the first Monday of February 1852, while the act under which the writ of error must be sustained, if sustained at all, was not passed until March 22, 1852; and that according to the rule established in The People v. Carnal, at the June term, 1852, the statute in question does not sustain a writ of error upon a judgment rendered before its passage. It appears, however, outside of the record by affidavits, that the judgment was in point of fact rendered in May term, and after the passage of the act. We entertain no doubt whatever that upon a question of this sort we are entirely at liberty and are bound to look out of the record to ascertain the true time when the judgment was rendered. Upon this ground we ought not to dismiss the writ. It is also contended that the judgment of reversal in this case does not come within the description contained in the act, of those judgments which are to be reviewed according to its provisions The act says: "Any judgment rendered in favor of any defendant upon any indictment for any criminal offence (except where such defendant shall have been acquitted by a jury), may be reviewed on writ of error on behalf of the people, and the court of appeals shall have full power to review by writ of error in behalf of the people any such judgment rendered in the supreme court in favor of any defendant charged with a criminal offence." That the terms "upon any indictment," do not limit the description to judgments not upon verdict is obvious from the exception which immediately follows, and which would be wholly unnecessary unless the preceding words of description were broad enough to cover judgments upon verdicts as well as upon demurrer. The clause is therefore to be construed as including all judgments in favor of defendants charged with crime, except where an acquittal by a jury has occurred. This brings the case in hand directly within the provision authorizing a review in this court of any judgment rendered by the supreme court in favor of a defendant charged with crime, unless indeed, in this particular case, to subject the judgment below to this act, would be to give it a retrospective effect. As however the act was passed before the rendition of the judgment appealed from, it does not need to be construed retrospectively in order to bring this case within its provisions.
This case is therefore rightly before us for examination upon the merits. If the supreme court has erred in reversing the judgment of the oyer and terminer, then it is our duty to pronounce judgment against the defendant. The principal question involved in the case arises upon the charge of the judge, who instructed the jury that if the killing was produced by the prisoner with an intention to kill, though that intention was formed at the moment of striking the fatal blow, it was murder; and that the jury might infer such intention from the circumstances of the case, and among other things from the nature of the weapon and the wounds given by it.
There was nothing in the facts of this case which made it necessary for the court to lay down the law in relation to homicide upon provocation. So far as the prisoner and the deceased were concerned, the deceased does not appear to have made any assault upon him, or to have interfered with him in any way.
The material facts are merely that while the deceased was standing on the sidewalk the prisoner came up and struck him on the head a violent blow with a heavy cartrung, of the length of about four feet and of the thickness of a man's arm; that deceased immediately fell with his head towards the street, partially over the curbstone; that the prisoner having for a short interval left the deceased, returned and struck him while lying on the sidewalk three blows on the head with the same cartrung. Of one of the blows the deceased died, the skull having been fractured at the back of the head.
The revised statutes (2 R.S. 656, 7, §§ 4 and 5), declare "the killing of a human being without the authority of law (unless it be manslaughter or excusable or justifiable homicide, as thereinafter defined) to be murder, when perpetrated from a premeditated design to effect the death of the person killed or of any human being;" and in some other cases which are not material to be stated for our present purpose. That the homicide in this case was neither justifiable nor excusable is conceded. Manslaughter in the first degree, except by aiding one to commit suicide or by killing an unborn and quick child by an injury to the mother, must be committed without a design to effect death.
The same absence of a design to effect death belongs to manslaughter in the second and third degrees except in certain cases named in the statute, and which have no resemblance to the case in hand. Manslaughter in the fourth degree includes all killing not justifiable or excusable, and not amounting to murder or manslaughter as before defined. The fact of which the prisoner has been found guilty, either amounts to murder as defined by the first clause of the statute, or it is only manslaughter in the fourth degree. The degree of criminality inherent in the act is plainly greater than belongs to several of the higher degrees of manslaughter; for the prisoner intended to kill, which intention, as we have seen, does not generally exist in any grade of manslaughter higher than the fourth degree. We can not suppose that the legislature intended to make an act of so heinous a nature only manslaughter in the fourth degree. If that is the legal grade of the offence, it must be attributed to an oversight on the part of the legislature growing out of the difficulty of adapting new terms to the expression of legal distinctions. Still, whether such an oversight has occurred can only be determined by a careful examination of the statute. The section defining murder (2 R.S. 657, § 5), varies from that reported by the revisers only in this, that it omits a subsection which included in the enumerated species of murder, homicide perpetrated from a premeditated design to do some great bodily injury, although without a design to effect death. Upon the section as reported, the revisers say "there is no departure from the present law except in the case of implied malice arising from being engaged in an unlawful act, as in a riot. If such death was designed or bodily harm was intended or the object of the riot was a felony, it would be included in the proposed section. The great principle on which the section rests is this, that to constitute murder there should be an express design to take life, or such circumstances as to induce a very strong presumption of such a design, or such facts occurring in a transaction as would ordinarily lead to the result of taking life."
In the case before us, the question is not whether a design to take life existed; that has been found by the jury. When the prisoner struck the blow, he intended to kill, so that we are not called upon to inquire what other design or purpose, if any, will suffice to constitute the crime of murder. The question here is — an intention to kill existing at the instant of striking the fatal blow, is such an intention a premeditated design within the meaning of the statute? The words premeditated, aforethought and prepense, possess etymologically the same meaning; they are in truth the Latin and Saxon synonymes, expressing a single idea and possess in law precisely the same force. The statute, so far as this term is concerned, has not altered the law. Malice prepense, however, had attained a broader meaning than belongs to the term premeditated design. The intent to take life was not necessary to constitute malice prepense. Even express malice or malice in fact is defined to be a deliberate intention of doing any bodily harm to another, unauthorized by law ( Hale's P.C. 451), and by no means necessarily involved an intent to take life. The change therefore which the statute has effected, by substituting the word design in place of malice, is not to alter the nature or degree of the premeditation requisite to the crime of murder, but to require — what the common law did not require — the existence of an actual intention to kill to constitute that crime under the first subdivision of the 5th section. This view of the law is well sustained by the decisions in those states where the crime of murder has been distinguished by statute into murder in the first and second degrees. In those states wilful, deliberate and premeditated killing is murder in the first degree. The cases are very ably reviewed in Wharton's Am. Crim. Law (2d ed. pp. 420 et seq.), and the clear result of them is, that in cases of deliberate homicide where there is a specific intention to take life, the offense if consummated is murder in the first degree. The degree of deliberation is not different from that required by the common law. As was said by Chief Justice M'Kean in Res. v. Bob (4 Dal. 145), "the intention remains as much as ever the true criterion of crime in law as well as in ethics. Let it be supposed that a man without uttering a word should strike another on the head with an axe, it must on every principle by which we can judge of human actions be deemed a premeditated violence." If there be sufficient deliberation to form a design to take life, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow or whether it be contemplated for months. It is enough that the intention precedes the act although that follows instantly. The law has no favor to extend either to the rapid or the slow execution of such a design. In the case before us there was no provocation, no mutual combat, no heat of passion which the law can recognize; for outbursts of ungovernable passion do not excuse a man for any acts of atrocity he may commit under their influence. Men are bound to control their passions, and if they suffer them to run away with their reason and senses they ought to suffer for it ( State v. Spencer, 1 Rob. 206). We can not discern a single circumstance which tends in any degree to soften one feature of the atrocity of the defendant's crime. Intending to take his victim's life, the defendant beat him upon the head with a deadly weapon until his design was accomplished. This crime is by our laws murder, and we are well satisfied not only that this is the law, but that it could not be relaxed so as to exclude such cases as the present without substantially diminishing the security of human life.
None of the cases in this state conflict at all with the law as before stated. The People v. Enoch, 13 Wend. 159, only holds that the common law form of indictment is sufficient under the new statutory definition of murder, and neither The People v. Rector, The People v. White, nor The People v. Shorter have any bearing upon the case.
The judgment of the supreme court is erroneous and must be reversed, and the judgment of the New York oyer and terminer must be affirmed, and as the day of execution is past the proceedings must be remitted to the supreme court to pronounce sentence anew against the prisoner.
The supreme court of Indiana, in the case of The State v. Beauchamp, decided in 1842, held the same doctrine laid down by Justice Edmonds in his charge to the jury in this case and sustained by the court of appeals. In that case the prisoner was convicted of murder. It appeared in evidence that the prisoner went to the house of the deceased to inquire into something which his daughter had said of him. They had an interview in which the prisoner became furiously angry and uttered threats. While his wrath was yet high the deceased entered the room and interposed, using the language of remonstrance. The prisoner drew a knife and plunging it into his breast killed him instantly. The blade of the knife was six inches long and one and a half wide. The prisoner immediately made his escape.
The court charged the jury "that if homicide be committed in a sudden heat by the use of a deadly weapon, no provocation given by mere words will reduce the killing to manslaughter: that the question should never be, was there anger, merely, but was there legal provocation to such anger! That the use of a dangerous weapon, under a provocation by words only or under no provocation, was always evidence of malice aforethought; that to constitute malice aforethought it was only necessary that there should be a formed design to kill, and that such design might be conceived at the moment the fatal stroke was given as well as a long time before; that malice aforethought means the intention to kill; and that when such means are used as are likely to produce death the legal presumption is that death was intended."
In approving the judgment, the supreme court of Indiana say, "with more pain at the result than difficulty in deciding, we are constrained to pronounce that the judgment of the circuit court must be affirmed."
GRIDLEY, J., was absent.
Judgment of the supreme court reversed.