Excusable homicide acquits.

Accessary to second degree.

Designation of punish

ment.

§ 545. Where the jury find the homicide is excusable, the practice in this country is not to find so specially, but to acquit.1

§ 546. A person may be legally convicted as accessary before the fact of murder in the second degree.2

§ 547. In several States, it is incumbent on the jury to designate the punishment to be inflicted. In such case the statute must be followed in the verdict.3

Com. v. Drum, 19 Pick. 479, 1837; People v. McDonnell, 92 N. Y. 657, 1883; Scott v. State, 60 Miss. 268, 1882; State v. O'Kane, 23 Kans. 244, 1880; Peterson v. State, 12 Tex. App. 650, 1882. The distinctions are more fully given in Whart. Cr. Pl. & Pr. (9th ed.) 249.

1 See supra, ? 308.

As to accessary to manslaughter, see supra, ? 232.

3 Walston v. State, 54 Ga. § 242, 1875; Green v. State, 55 Miss. 454, 1877. See Whart. Cr. Pl. & Pr. {{ 736 et seq.

See, as to specification of punishment, Buster v. State, 42 Tex. 315, 1875; People v. Welch, 49 Cal. 174,

2 Jones v. State, 13 Tex. 168, 1854. 1874.

POINTS REQUESTED FOR THE DEFENCE IMPROPERLY REFUSED, AND ERRONEOUS CHARGES.

Premeditation and Malice Must Be Shown.

The court charged the jury as follows: "Malice is implied from any deliberate, cool, injurious, and unlawful act against another which shows an abandoned and malignant heart, and if one person without apparent provocation, wilfully and intentionally and unlawfully shoots another with a deadly weapon, although he had no previous malice or ill-will against the party slain, yet he is presumed to have had such malice at the moment of the shooting; and unless the evidence shows that he was acting from some innocent or proper motive, or that he was justified or excusable, such killing would be murder." Held error. Adams v. State, 28 Fla. 511, 1891.

Failure to Completely Prove an Alibi is No Evidence of Guilt. The court charged: "When proof of an alibi is attempted, and proven to the satisfaction of the jury, it is conclusive of the case. When it is attempted, and the proof to sustain it is not satisfactory, the failure to prove it satisfactorily is a circumstance unfavorable to the defendant; but it is no more so than an attempt to clear himself by any other false or fabricated testimony." Held error. Ibid.

Error to Assume Defendant Struck the Fatal Blow if the Fact is Disputed.

Where there is no direct proof that defendant inflicted the wounds which caused death, it was held error to charge that "in considering whether the

killing was justifiable on the ground the killing was in self-defence, the jury should consider all the circumstances attending the killing, the conduct of the parties at the time and immediately prior thereto, and the degree of force used by the prisoner in making what is claimed to be his self-defence, as bearing upon the question whether the blows, cuts, and wounds given the deceased were actually given in self-defence, or whether they were given in carrying out an unlawful purpose; and if the jury believe from the evidence that the force used was unreasonable in amount and character, and such as a reasonable mind would have so considered under the circumstances, it is proper for the jury to consider that fact in determining whether the killing was in self-defence or not." Cannon v. People, 141 Ill. 270, 1892.

Right of Self-defence with a Deadly Weapon.

Where the only evidence as to the deceased assaulting defendant is that he assaulted him with a deadly weapon, an instruction was given at the request of the people "that a person has no right to use any more force in self-defence than a person of ordinary prudence would deem necessary under the circumstances; if he is struck with the naked hand and there is no reason to believe there is a design to do him great bodily harm, he will not be justified in returning blows with a dangerous weapon; and if the jury believe that Martin Ryan did strike or slap the defendant with his naked hand, without any design to do him great bodily harm, and they further find from the evidence beyond a reasonable doubt that the defendant then assaulted the said Martin Ryan with a deadly weapon, inflicting serious and fatal wounds upon his person, thereby causing his death, then the jury should find the defendant guilty." Held error. Cannon v. People, Ibid.

Accidental Shooting-Binding Charge.

Where the evidence indicated an accidental shooting, it was held error to charge that the jury could render but one verdict, guilty generally, or guilty with a recommendation that the defendant be imprisoned in the penitentiary for life, or not guilty. Burton v. State, 92 Ga. 449, 1893.

State Must Prove Defendant Committed First Assault.

The defendant requested the court to charge that when it is uncertain who committed the first assault, then it is the duty of the State to prove beyond a reasonable doubt that it was the defendant. Refused. Held error. State v. Workman, 39 S. C. 151, 1892.

Definition of Murder Must Be Explicit.

An instruction that "murder in the second degree embraces all cases of murder at common law in which there was no specific intent to kill, but in which the law presumes an intent to kill, and which are not made manslaughter or murder in the first degree by statute," is too abstract for a jury. State v. Mitchell, 98 Mo. 657, 1889.

Guilt Must Be Shown Beyond a Reasonable Doubt.

It was error for the court to refuse to charge the jury that "if they are not satisfied beyond a reasonable doubt that when defendant threw the brick

he intended to kill deceased, or that the act is one from which death or great bodily harm would ensue, they must acquit defendant of manslaughter in the first degree." Lewis v. State, 96 Ala. 6, 1892.

Self-defence Need Not Be Proved by Preponderance of Evidence.

An instruction that if the State should first make out a case of murder or manslaughter beyond a reasonable doubt, it would then be necessary for defendant to prove self-defence by such a preponderance of evidence as would show beyond a reasonable doubt his being guilty, is not only ambiguous, but leads to the belief that more than a preponderance of evidence would be necessary to establish the self-defence. State v. Summers, 36 S. C. 479, 1892.

Except in Cases of Conspiracy, the Defendant Must Be Shown to Have Struck the Fatal Blow.

Where there is no evidence that the conflict was brought about in pursu ance of any conspiracy, or that there was any premeditated co-operation between the different participators, it is error to instruct that "if defendant voluntarily brought on a difficulty or shooting with deceased, and thereby caused other persons to take part in the unlawful affray in which deceased was killed, defendant is guilty of murder, although he may not have fired the fatal shot." Brabston v. State, 68 Miss. 208, 1890.

Technical Words Not to Be Used Without Explanation.

Where the Code of Mississippi, ? 2878, provides that a killing is justifiable when committed in lawful defence of any other human being, where there are reasonable grounds to apprehend a design to commit a felony, it was held error to instruct the jury that in order to acquit the defendant it must appear that the homicide "was necessary to save the life of L., feloniously attacked by deceased without provocation," as it fails to define what constitutes a felonious attack by deceased. Brabston v. State, supra.

Defendant requested the court to charge that "if the jury believe from the evidence that deceased was making a deadly assault on L., and that defendant had reasonable ground to apprehend that deceased designed to kill L., or to do him great personal injury, and that there was imminent danger of such design being accomplished, the defendant had the right to kill deceased in defence of L." Refused. Error. Ibid.

The court refused to charge that "if the jury find that the thing the defendant (the owner of the premises) did in the first instance was to speak to deceased in a peaceable, quiet manner, to warn him not to trespass on his premises, then the defendant was not the aggressor." Held error. Gibson v. State, 91 Ala. 64, 1890.

Self-defence. Right Qualified to too Great an Extent.

The following charge was held objectionable as being ambiguous and as giving undue prominence to the necessity for deliberation: "If the defendant, being without fault, believed himself in imminent danger of great bodily

harm, and could think of no less dangerous means of preventing the same than the use of the weapon employed, he would be justified in making such use of it as then appeared necessary." This was followed by a statement that they were to be very careful on this point, that deceased's right to life was as sacred as defendant's right of self-defence. Fields v. State, 134 Ind. 46, 1892.

Self-defence. Proper Charge Refused.

It was held error to refuse an instruction that "if the jury believe from the evidence that neither of defendants brought on, provoked, or encouraged the difficulty, but were talking with deceased in a quiet, orderly, and peaceable manner, and that deceased threatened to shoot defendant, B., and at the same time placed his hand in his pocket in such a manner as to indicate to a reasonable mind that his purpose was to draw a weapon and shoot, and drew it in a threatening manner, and said he would cut his throat, and jumped at B. and cut and disabled his left arm, and was putting himself in a position to strike again, and at the moment there was no reasonable mode of escape without increasing defendant's peril, then defendant was authorized to anticipate deceased and shoot first, having the right to act upon the reasonable appearance of things." Gibson v. State, 91 Ala. 64, 1890.

Self-defence. That Defendant Provoked Quarrel Does Not Necessarily do away with Right of.

The court instructed the jury that if defendant voluntarily provoked the difficulty which resulted in death of deceased by defendant, "then the jury cannot acquit defendant on ground of self-defence; and this is true, although... at the time defendant fired the shot that resulted in the death of deceased, he was pursued by deceased and was hard pressed, and endeavoring to get away from deceased and to abandon the combat.' Held State v. Cable, 117 Mo. 380, 1893.

error.

Self-defence. Right to Eject Trespassers.

Where homicide occurred on defendant's premises, of which deceased and others were unlawfully trying to dispossess him, it was error to fail to instruct on the question of self-defence, that defendant being on the premises was not bound to retreat, but had the right to use such force as was reasonable and necessary to repel a forcible entry thereon. Baker v. Com., 93 Ky. 302, 1892.

So, also, as to defence to the person. Crane v. Com., (Ky.) 13 S. W. Rep. 1079, 1890.

In Moody v State, 30 Tex. App. 422, 1891, it was held error for the court to instruct the jury that the penalty may be either fine or imprisonment, where the statute provides that there may be "both such fine and imprisonment." Also error for the court to fail to instruct the jury as to malice aforethought, and this is not cured by definitions of express and implied malice. Ibid.