Bennett v. State

• Decision Date: 04 November 1913
• Docket Number: Criminal 337
• Citation: Bennett v. State, 15 Ariz. 58, 136 P. 276 (Ariz. 1913)
• Parties: M. A. BENNETT, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

136 P. 276

15 Ariz. 58

M. A. BENNETT, Appellant, v. STATE, Respondent

Criminal No. 337

Supreme Court of Arizona

November 4, 1913

APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge. Affirmed.

The facts are stated in the opinion.

Mr Allen R. English and Mr. J. T. Kingsbury, for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, for Respondent.

OPINION

FRANKLIN, C. J.

Indictment for murder. The defendant was convicted of murder in the second degree. The appeal is from the judgment and order denying a motion for a new trial.

On trial of the cause no evidence was introduced by the defendant. A reversal of the judgment is urged because the evidence adduced by the state shows no element of murder. The point made is that the evidence discloses an absence of malice aforethought, and this is the only matter to be decided.

The homicide occurred in the town of Wilcox on the twenty-sixth day of June, 1912. The surgeon who examined the body of the deceased stated his death was caused by a bullet wound severing the main artery that supplies the brain, and which runs up by the side of the neck in the region where the bullet entered. It appears from the evidence that about six weeks previous to the time of the homicide the deceased had killed a dog belonging to the appellant, which occurrence had occasioned a feeling of hostility on the part of appellant toward Mr. Wiley, the deceased. This feeling of hostility was expressed by appellant on several occasions to different persons. These persons testified that appellant, upon being informed that Wiley had killed his dog, asserted to one that "he would get even with the -- that killed the dog." And to another that "he would fix the man that killed her."

On the day of the homicide Wiley, the deceased, was walking down one of the streets of Wilcox, on which was located the Midway saloon, a place in which appellant was employed. The deceased was leisurely walking along, stopping at different times to converse with some acquaintances. When he arrived in front of the Midway saloon he stopped and engaged in conversation with one C. C. Mcduff. While so engaged the appellant opened the screen door of the saloon, and, putting his head out of the doorway in a very offensive manner, so the witnesses put it, "bleated like a sheep at Wiley." Thereupon appellant and deceased engaged in an altercation, followed by a physical struggle, were, the witnesses state it, scuffling about the saloon, and during which opprobrious epithets were bandied to and fro. During the struggle Wiley pressed the appellant's head against the jamb of the saloon door, and pushed him out on the sidewalk.

P. B. Clark, who was sitting in the saloon at the time, testified that appellant came back into the saloon, and went behind the bar, and the deceased proceeded to follow him behind the bar, and appellant said, "don't come behind the bar," and picked up a gun, and said, "get out from behind the bar," and the deceased kept going, and appellant shot him; that deceased threw his hand up, the witness observing blood streaming down his bosom, the deceased exclaiming, "Oh, my God!" as he walked out of the saloon on to the sidewalk, where he fell, and died a few minutes later.

Another witness testified that shortly after the shooting appellant characterized the deceased by a vile epithet, and stated that the deceased came in the saloon, and caught appellant, and carried him to the door, and threw him out, and started to catch his gun, and he told him to stop. The evidence does not disclose that Wiley was armed in any way, and, while he was lying on the sidewalk in front of the saloon dying, the appellant was observed leaning with his elbows on the bar of the saloon looking out at Wiley.

Murder is the unlawful killing of a human being with malice aforethought. Such malice is express or implied. It is expressed when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied where no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Par. 172, Ariz. Pen. Code 1901.

The statute separates the felonious homicides into the two degrees of murder and manslaughter. Malice must therefore always exist in murder; the two degrees of murder being distinguished from manslaughter by being committed of malice aforethought. To ascertain, therefore, whether a felonious killing is murder or manslaughter, we have simply to inquire whether it was committed of "malice aforethought" or not. Bishop's New Criminal Law, sec. 673.

Many attempts have been made in the books to generally define malice; but, however accurate we may regard the definition, it does not furnish much practical help in the concrete case. Recognizing the little practical help given by any general definition of the term, our statute has furnished the criteria for determining its presence in the given case. It is present when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is present where no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

The law excuses or justifies a homicide in some instances and under certain circumstances, and, when upon the trial the homicide appears to be justifiable or excusable within the terms of the statute, the person charged therewith must be fully acquitted and discharged.

The law also mitigates the unlawful killing of a human being from murder to manslaughter when such killing is done without malice. It is of two kinds: (1) Voluntary. In the commission of an unlawful act not amounting to a felony; or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution or circumspection. Par. 176, Ariz. Pen. Code 1901.

It is the wisdom of divine Providence to deny men the philosopher's stone wherewith to solve the manifold complexities, and lay bare to view the mysteries of the mind and heart. And so the law furnishes no psychological test by which to determine directly the state of the mind, for in a sense it is unknowable. But the law does give the criteria for ascertaining the presence or absence of malice in the concrete case.

So malice aforethought relates not merely to the state of the mind of the person who unlawfully kills another, but to the moral aspects of the case as indicated by all the conditions and circumstances attending and characterizing the act. The circumstances may in law justify or excuse the killing, or they may mitigate it to manslaughter. The law...