Darry v. People

The offence of murder, though the most heinous crime that can be committed against an individual, had not, either in England or in this state, been subjected to a legislative definition, until it was done in the enactment of the Revised Statutes in the year 1830. By the ancient common law the distinction in felonious homicide between killing with or without malice, was merely nominal, both being indiscriminately punished with death. It was said that although the malice made the fact more obvious, yet it was nothing more than the manner of the fact, and not the substance; and the term manslaughter was used to define the offence in both cases. But

These references are sufficient to show that the term malice prepense, had been made the subject of much, and not always intelligible, refinement. Malice in law, or implied malice, was sometimes simply a conclusion from the facts and liable to be overcome by the other facts, and at other times it was an irresistible legal inference, which could not be rebutted. So far from being a descriptive term to be applied as a test to cases as they should arise, it had become simply a part of the name to be given to the offence, when its existence had been ascertained by other tests. It was probably for this reason that the expression was wholly omitted in the revised code. The object of the revisors and of the legislature was to define the offence by the use of language in its ordinary sense, omitting a phrase which, though it tended to mislead rather than instruct, had become technical. The provision respecting murder, as proposed by the revisors, was as follows:

§ 5. Such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases:

1. When perpetrated from á premeditated design to effect the death of the person killed, or of any human being; '

2. When perpetrated by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual;

3. When perpetrated without any design to effect déath, by a person engaged in the commission of any felony;

4. When perpetrated from a premeditated design to do some great bodily injury, although without a design to effect death.” (3 R. S. 2d ed. 808.)

The legislature was at the same time informed by the re-visors that a lamentable uncertainty prevailed in regard to the distinction between murder and manslaughter; that nothing was so much needed as a settled linó of distinction between them; and that the first step to such' a distinction was the definition of murder, {id.)

These provisions were' ehactéd precisely as reported except the fourth subdivision of the fifth section which was rejected. (2 R. iS. 651.) It thenceforward became the duty of the courts by an attentive consideration of the language of these enactments, to ascertain in each case presented for adjudication whether the alleged offence came within the statute. The case of the plaintiff in' érr'or would have been of easy solution as the law stood before the revision. The deceased died by his hands, and the bill of exceptions states that there was no evidence given to' show any provocation on her part. It was a homicide wholly unexplained. It was also a case of cruel and inhuman violence, unrelieved by provocation, or the heat of

It is not necessary to maintain that homicide from a cruel assault without a design to effect death could be adequately punished under the provisions respecting manslaughter. It

If so, it is a casus omissus which the legislature is alone competent to supply.

I have not overlooked the opinions incidentally expressed by Chancellor Walworth and Mr. Justice Bronson in The People v. White ( 24 Wend. 520 ,) and in The People v. Rector ( 19 Wend. 569 ). In neither of these cases was this question presented and in both of their opinions the learned judges were .dissentients from the judgment of the .court upon the points decided in those cases.

The judgments of the courts below should be reversed, and a new trial ordered in the court of Oyer and Terminer.

The prisoner was indicted for the murder of his wife. It appeared from the dying declarations of the de ceased, that on the night of the 8th of August, after she and the prisoner had retired to bed, the prisoner commenced striking her in the pit of the stomach with his fist, which he repeated \ on the 9th and 10th of August; he also struck her on the head with his fist and on one of those nights struck her on the head ' with a chair. The prisoner had been drinking with the stepfather of the deceased and during a portion of the time was in some degree under the influence of liquor. The evidence tended to show that the deceased gave no provocation and made little or no resistance to the attacks of the prisoner save in the way of expostulation and request for him to desist. The prisoner and deceased were in a room alone when the injuries were inflicted, but the other part of the house was occupied by her parents and brother, who heard her cries and witnessed many of the acts of violence committed by the prisoner.

The surgeon who examined the body of the deceased was of the opinion that the injuries inflicted upon her stomach caused her death and that the injuries upon her head had no such .effect.

The presiding judge charged the jury, among other things, that in order to convict the prisoner of the crime of murder, it was not necessary that they should be satisfied that the prisoner at the time of inflicting the injuries up the deceased, entertained a premeditated design to effect' her death by means of those injuries, according to the first subdivision of section five. But if they should find upon the evidence that the prisoner designedly inflicted the injuries, that they were inflicted without provocation and not in the heat of passion, but were perpetrated by such acts as were imminently dangerous to the life of the deceased, and evincing on the part of the prisoner a depraved mind, regardless of human life, although without any premeditated design to effect the death of the deceased, that then the offence would come within the statute defining the crime of murder. An exception was taken to the charge.

As it appeared that the injuries upon the head of the deceased had no part in causing her death, we may lay them entirely out of view in considering this case. The whole case then is this'. The prisoner made three several assaults upon the deceased and beat her with his fists in the pit of the stomach, which" caused her death.

The fact that the prisoner had threatened to kill the deceased certainly made the case a proper o.ne in which to submit to the jury the question, under the first subdivision of the definition of murder, whether the act was done from a premeditated design to effect death. But the judge charged that the prisoner might be convicted under the second subdivision of the definition of murder, which applies to a killing “ perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any particular individual.”

I think that subdivision was designed to cover a very different class of cases; such as where death is caused by firing a loaded gun into a crowd; by poisoning a well from which

A careful examination -of the section defining murder, and the sections defining manslaughter will show, I think, very clearly the erroneousness of the charge in this respect The

If full effect be thus given to the words “ unless it be manslaughter,” in the preliminary part of the section defining murder, the second subdivision of that section will only be applicable to the class of cases above indicated. All others growing out of personal rencontres and confined generally to two persons only will be found to fall within some of the definitions of manslaughter, and of course without the second definition of murder.

With this construction, crimes will also be properly graduated according to the intention of the revisors. If A attempt to cowhide B, for having libeled him and death accidentally ensue, the crime will be manslaughter in the first degree, because the assailant was engaged in committing an assault and battery only. But if A attempt to cut off the hand that wrote the libel and death accidentally follow, the crime will be murder, because A was engaged in the commission of the felony of mayhem.

If this case was properly submitted to the jury, as falling under the second subdivision of murder, so might a case be thus submitted when death was caused without design by a person engaged in a felonious assault upon the person killed, which is one of the cases expressly provided for in the third subdivision. But the construction I have put on the second .subdivision, confines each subdivision to a distinct class of cases and renders it entirely inapplicable to any other.

But it has been' said, (People v. Rector, 19 Wend. R. 608,) that the sixth section of the statute defining manslaughter in the first degree, is not applicable to a case where the party causing death without design is engaged in an assault and battery., I find no warrant for such a position. No exception of that. offence is .made in the statute. The language is, “ the killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of any other, while such other is engaged: 1st. In the perpetration of any crime or misdemeanor not .amounting to a felony; or, 2d. In an attempt to perpetrate any such crime or misdemeanor, in

It is said that this plain construction of the act would make every case murder, because being engaged in assault and death ensuing, it becomes the felony of manslaughter, and being engaged in such felony and death ensuing it is murder. But it leads legitimately to no such result. The intent regulates the crime, unless otherwise provided. If the party intends an assault and battery .and death ensues without design, he is guilty of manslaughter. If he intends a mayhem or other felony to the person, and death ensues without design, it is murder. The law makes a person responsible for consequences not designed in proportion to the grade of offence designed.

This construction supposes an attempt coolly and deliberately made to commit a battery, and the offence of unintentionally causing death in such a case is the first degree of manslaughter. If there is the excuse that the act was done in the heat of passion, though in a cruel or unusual manner, or with a dangerous weapon, it is mitigated by the tenth and tweleih sections to manslaughter in the second degree, and if done in the .heat of passion, but not in a cruel or unusual manner, and not with a dangerous weapon, it is reduced by the eighteenth section to the fourth degree.

It may be that these .respective crimes are not properly graduated or punished in proportion to the moral delinquency. But the disproportion would be much greater, if we hold that death ensuing without design from the commission of a battery is not manslaughter in the fi.rst degree within the description of the sixth section. With such a construction, and with a construction of the second subdivision .of the definition of murder like that adopted at the trial, the question for the jury would not be, whether the crime was murder ¡or manslaughter

It is objected, that if my construction of the first degree of manslaughter is correct, it would cover every other degree of manslaughter, for in every case provided for the lower degrees, there is also an assault and battery and death ensues. I answer, the general description in the first degree can not be considered as. applicable to cases particularly described in the lawer degrees. The first degree gives the general description, the lower degrees the exceptions, as when the act is done in the heat of passion, &c. It is far more consistent to hold that the description in the first degree does not apply to cases described in the second and third degrees, than to hold it is not applicable to any case of assault and battery where death énsues. There is much less violence done to the language of the section by my construction than by that against which I contend. There is reason in holding that the first section, being in general terms, is not applicable to cases specially described. Though within the general language, it may well be supposed the legislature did not intend to include them, because they are provided for specially in other sections. But it seems to me it is refusing obedience to the statute to say, that it is not intended to be applied to any case of assault and battery, when no exception of that offence is made.

But, whatever, may be the true construction of the sixth-section defining manslaughter in the first degree, I am clearly of the opinion, that the court below erred in attempting to bring the case within the second subdivision of the section defining murder. The offence was either murder by design under the first subdivision or manslaughter in some degree.

If I were sitting in the Oyer and Terminer, and perhaps if sitting in the Supreme Court, I should feel bound by the opin

My conclusion is, therefore, that the court of Oyer and Terminer erred in its charge to the jury, and that the judgment of that court and of the Supreme Court should be reversed.

Selden, J.—The substitution of new and original phraseology in our statute defining the crime of murder, (2 R. S. 651, § 5,) was the result of an effort to clear the subject of the obscurity which grew out of the inaccurate use of some of the terms of the common law. To render this effort successful it is necessary to construe the new terms used according to their plain and natural import; a resort to the rejected terms, in order to interpret those newly adopted, would obviously reinvest the subject with much of the previous uncertainty, and render abortive this attempt at elucidation.

When, therefore, it is said, as has been said by several of our judges, that the first subdivision of section five of our statute, was intended to define murder from express, and the second and third from implied, malice, no light whatever is thrown upon the true interpretation of the section.

A glance at the law of murder as it existed prior to the Revised Statutes will make it evident that the terms express and implied malice, and malice aforethought, used so copiously in every definition of murder at common law, must have been intentionally excluded from the statute; and I think it equally clear, in view of the great looseness and inaccuracy with which these terms had been used, that this exclusion was wise.

There is no difference in the nature or degree of the malice, intended, whether it be called express or implied, when these

That this is the true original meaning of these terms, when used in connection with this crime, is apparent, I think, from the natural import of the words themselves, as well as from their accustomed use in other branches of the law. They are appropriate terms to express different modes of proof, and are habitually used for that purpose; but are not adapted to the description of different degrees of malicious intent.

The phrase “ implied malice ” is properly applied to a case where the evidence shows that the accused did the act wdiich caused the death, but when there is no other proof going to show the existence Or the want of malice. In such cases, the law does not impute a malicious intent irrespective of its real existence, but if presumes, in accordance with the settled rules of evidence, that such intent did actually exist.

York’s case (9 Metcalf 93,) was a case of this description, and the rule as well as the reason upon which it rests are those stated by Chief Justice Shaw. In speaking of the mere act of destroying life, he says, “ The natural and necessary conclusion and inference from such an act wilfully done without apparent excuse are, that it was done ‘ malo animo ’ in pursuance of a wrongful, injurious purpose, previously, though perhaps suddenly formed and is thérefore a homicide with malice aforethought, which is the true definition of murder. And it appears to us that this is not a forced, arbitrary, technical or artificial presumption of law,- but a natural and necessary inference from the fact.”

Again he says, “ A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of his own act.”

This case and this reasoning áfford a clear illustration of

Now what is meant by this application of the term implied malice, indiscriminately to all cases arising under either of these several classes'? It is apparent that so far as any actual criminal intent exists, it may be expressly proved in these cases as well as any others. It follows, therefore, that in cases where such proof is given, implied malice, if it means any thing, must mean malice which has no existence in fact, but which the. law imputes to the guilty party.

This implication of a species of malice which did not exist, seems to have been invented for the purpose of bringing cases of constructive murder, so called, within what was supposed to be the legal definition of the crime. It was evidently supposed that the word malice meant in all case's .ill will towards some person or persons; and hence that the phrase malice afore thought, used in indictments for murder, necessarily imported a charge of premeditated design to kill. To meet this averment which in cases of constructive murder was not required to be proved, the law was said to imply, that is, to supply by mere fiction, the requisite degree of malice.

There was, however, in truth, not the slightest necessity for this fiction; the interpretation of the word malice in which it was founded being strictly erroneous. The idea that the term malice necessarily imports ill will towards another, when used, in a legal sense, is abundantly refuted by Mr. Justice

This passage is cited and approved by Chief Justice Shaw in YorIce’s case (9 Metcalf, 93,) and there are many other authorities to the same effect. To show that the view here presented is in entire accordance with the ancient law, I will give a passage or two from Foster, one of the earliest and clearest writers on criminal law. (See Foster’s Cr. Law 256-7.) He says, “ Where the law maketh use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars; for the law by the term malice in this instance meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved malignant spirit.”

Again, he says: “ And I believe that most, if not all the cases which in the books are ranged under the head of implied malice, will if carefully adverted to, be found to turn upon this single point; that the fact hath been attended with such circumstances as carry in them a plain indication of a heart regardless of social duty and fatally bent on mischief.”

This is the precise doctrine for which 1 contend. It shows that the resort of a fictitious imputation of a species of malice having no existence in fact, called implied malice, was gratuitous and unnecessary; and being so, it could scarcely fail to be pernicious.

In putting a construction therefore upon our statute, we should lay aside entirely the common law terms of express and implied malice as calculated to mislead and to engender false ideas; and interpret the phraseology as before insisted, according to its ordinary import. Looking then at the statute itself, and construing it in this spirit, what is its real scope and meaning?

In endeavoring to answer this inquiry it is important to keep in view certain rules which reason and experience, have established as calculated to aid in the just interpretation of statutes.

If the enactment be subdivided, each subdivision should be construed so as to provide for a separate and distinct class of cases, and so as to include all cases it is intended to embrace, and to exclude all others.

Each clause is also to be construed in the light of all the rest, and so as to give force and effect to every sentence and word; and such a construction is to be put upon the whole, if possible, that no case or class of cases will fall within more than one branch of the act.

These rules are necessary, in order to attain that precision and certainty which is the object of the subdivision.

There is, I believe, no great contrariety of opinion as to the meaning of the first subdivision of section five of the statute in question. If there is any difficulty in this respect, it is in ascertaining whether the last clause of that subdivision, viz;- “ or of any human being,” was intended to provide solely for cases where the premeditated design, although not aimed at the person actually killed, was nevertheless directed to some particular individual; or whether it also includes cases where it was aimed indiscriminately at a multitude of persons,, or at human life in general.

That the former is the true interpretation was insisted by the ‘

I have very little hesitation in adopting the construction of this subdivision thus contended for, not only for the reasons given by the counsel, but for others which will appear when we take into consideration the second subdivision. This brings us to the difficult part of our task, that of interpreting the second subdivision of the section in question. This subdivision was incidentally and partially considered in the People v. Rector, 18 Wend. 569 ,) and in the People v. White, ( 24 Wend. 520 .) But the examination given to it in those cases was cursory merely, and no attempt was made to subject it to that rigid analysis which is indispensable to the development of its true meaning. It becomes necessary therefore, in my view, to look at the subject as an original question. In doing so, I shall inquire, first, whether an actual intent to destroy life, is in all cases essential to constitute the crime of murder under this subdivision. The affirmative of this question was very strenuously contended for by the counsel for the prisoner upon the argument, and great learning and ability were displayed in the

But there are' serious objections to taking this view of the latter subdivision, conceding the construction thus put upon the first to be, as I think it is, correct. Of what use, upon this supposition, are the words “ imminently dangerous to others.” Are they not rendered mere unmeaning verbiage by assuming that an actual intent to take life is essential to the crime under this subdivision? Again, if such an intent is necessary, the requirement must be found in the definition of the crime given by the statute. The only affirmative words indicative of the intent required, are these: “ A depraved mind regardless of human life.” These words describe the state of mind which must accompany the act. Do they express a formed intent to destroy life? Clearly not. No sound reason can be given why the legislature should have resorted to such equivocal and circuitous phraseology to express that single intent. 'Such an intent is expressed in clear terms in the-subdvision which precedes, as well as that which follows the one under review; would they not have expressed the same intent in the same way in this, if that was what was meant? Would they have resorted to phraseology not only peculiar, but such as does not import what upon this supposition they intended? It seems to me not.

But this is not all. The phraseology of the subdivision is taken substantially from the writers upon the common law. An absolute" intent to take life was not necessary at common

The first general division of homicide as given by East, is as follows: “ From malice aforethought express; when the deliberate purpose of the perpetrator was to deprive another of life, or do him some great bodily harm.” (1 East P. C. 222, § 9.) This general division of homicide is again divided by East into three subdivisions in the next section, as follows:

1. From a particular malice to the person killed.

2. From a particular malice to one, which falls by mistake or accident on another.

3. From a general malice or depraved inclination to mischief, fall where it may.

Now as this third subdivision is obviously a specification of the nature of the cases falling within the last clause of the previous general division, it is entirely clear ihat it was intended to describe a class of cases in which a deadly intent is not required to make out the crime.

It has been already intimated that the first subdivision of áection five of our statute, appears to be a virtual transcript of the first two subdivisons just given from East. It is, I think, equally apparent that the second subdvision in our statute, was taken substantially from the third subdivision of East, although not a literal transcript of it. The inference from this i's very strong that it was intended to describe the same class of cases; and if so, then it follows from what has already been said, that a deadly intent is not necessary to constitute the crime of murder under it. But there is an important clause added to the second subdivision in our statute which does not appear at all in East; and ir becomes indispensable to ascertain its design and object. If we can discover the true object of introducing this clause, we have a key to the interpretation of the whole section. The words are, “ although without any premeditated design to effect the death of any particular individual.” These words must have been introduced for some purpose; what was if?

I remark first, that they were not designed to show that a

There is but one other purpose which this alone could have been intended to subserve. Although the terms of the second subdivisions do not require a deadly intent to make out the crime, yet independent of the clause in question they do not exclude it. Hence the second subdivision might be construed to embrace most, if not all the cases provided for in the first. This would defeat the very object of the classification, which was to draw a clear line of distinction between the different classes, and prevent confusion by their merger.

The plain object therefore of the last clause of the second subdivision, and the only conceivable object, I hold to have been, to mark the distinction between that subdivision and the first, by at once excluding from the former all cases oí particular, and at the same time showing that it was not intended to exclude cases of general, deadly intent.

Assuming this to have been its object, it is apparent that force and significancy is given to every word of the clause in question, and that each of these subdivisions is made to stand out, isolated and distinct, with boundaries clearly marked, and with no tendency to fusion with each other.

It will be seen that this view necessarily limits the first sub

I doubt whether any other reading can be adopted which will at once give scope and meaning to every word of both subdivisions, and at the same time accomplish the object of drawing a definite and clear line of demarcation between the two; We have then the precise classification of East; the only difference being that in our statute, it is simplified by reducing the first two subdivisions into one; and rendered a little more definite by the express exclusion from the last subdivision, of all cases embraced in the first.

What then are the cases, which upon this construction, were intended to be excluded in the second subdivision? In considering this question, it is clearly proper in the first place to inquire what kind of cases were embraced in the corresponding class as defined by East.

The words in East are, “ from a general malice or depraved inclination to mischief, fall where it may.” The word “ general” here used and the last words of the sentence leave no doubt as to the nature of the cases contemplated by this subdivision. They were .cases of depraved reckless conduct) aimed at no one in particular, but endangering indiscriminately thelives of many, and resulting in the death of one or more.

If this be not clear upon the words themselves, the comments of Mr. East upon this subdivision would seem to put the matter at rest. (1 East’s P. C. 231, §18.) In illustrating this subdivision he says: “ The act must be unlawful, attended with probable serious danger, and must be done with a mischiveous intent to hurt people, in order to make the killing amount to murder in these cases,” and the instances he gives are as fol

■ These are the only examples given, and they accord perfectly with the language of the subdivision, and show that the latter was intended to embrace those cases of general malice only, where the lives of many were, or might be, in jeopardy. The inference is very strong that the subdivision of our statute which we are considering, was intended to provide for the same cases as that of East, from which it was substantially taken. But the argument in favor of this construction is by no means confined to this inference.

It is clear, I think, from what has been already said, that the subdivision in question does embrace those cases where an intent to take life exists,, which is not directed to any particular individual, but is general and indiscriminate. The language of the subdivision however at the same time shows that it was not intended to be confined to those cases, but was designed to .include another class closely akin to, and almost identical with those in which death is produced by acts, putting the lives of many in jeopardy, under circumstances evincing great depravity and utter recklessness in regard to human life.

For instance, a man may fire into a crowd with the view of destroying life, and he may do so for the mere purpose of producing alarm, although at the imminent hazard, as he knows, of killing some one. Again: he may open the drawbridge upon a railroad with the intent to destroy the lives of the passengers, or he may do it for the sole purpose of effecting the destruction of the property of the railroad company.

The subdivision in question was intended to provide for all these and similar cases indiscriminately, putting them upon the same footing without regard to the particular intent.

The phrases “ imminently dangerous to others ” and “ de

If then the subdivision was intended to include cases of this description, it would seem to follow, upon the plainest principles of construction, that cases of death produced by acts affecting a single individual are excluded. It would be repugnant to all sound rules of interpretation, to associate under the same clause of a statute, groups of cases so dissimilar as those, examples of which I have just given, and ordinary homicides; especially where, as in the present instance, an attempt has been made in framing the statute, at the precise classification of the cases arising under it.

The examples which I have given as falling within the provisions, bélong to a class having marked features, easily distinguished from all others; and there is no difficulty in so construing the subdivision in question as to exclude cases not belonging to this class, and at the same time so as to include all cases falling properly within it.

For these reasons, I am entirely satisfied that this subdivision was designed to provide for that' class of cases, and no others, where the acts resulting in death and calculated to put the lives of many persons in jeopardy without being aimed at any one in particular, and are perpetrated with a full consciousness of the probable consequence. Such acts may well be said to evince that reckless disregard and indifference to human life which is fully equivalent to a direct design to destroy it. The moral sense of mankind distinguishes between acts of this sweeping and widely dangerous character and ordinary cases of individual homicide; and so in my judgment does the statute.

But there is an additional reason for putting this construction upon the subdivision in question. If it can be so construed as to include the case at bar, and others of a similar description, we are left wholly without any line of distinction between murder and manslaughter, except the loose and uncertain opinion of a jury as to whether the act which produced death did or did not evince a “ depraved mind regardless of human life.”

This construction then would throw us upon that sea of uncertainty which it was the special object of the revisers in framing, and of the legislature in adopting the section in question, to avoid.

My conclusion therefore is, that the only construction which is consistent with the language of the section as a whole, with the object aimed at in its adoption, with the precision and certainty of the law, and with the convenient and safe administration of justice, is that which I have already given.

I omit to express any opinion as to the particular degree of manslaughter within which this case is embraced, it being unnecessary to the decision of the cause.

The question was somewhat agitated upon the argument, but ought perhaps to be more fully discussed and more deliberately considered before it is definitely settled.

It follows from what has been said, that the judge erred upon the trial in submitting the case to the jury under the second subdivision of the section of the statute in question, and consequently that there must be a new trial.

Edwards, Allen and Johnson, JJ., concurred.

Gardiner, Ch. J., and Rugóles, J., read opinions for affirmance.

Conviction reversed and new trial awarded.