Commonwealth v. Pemberton

• Decision Date: 25 June 1875
• Citation: 118 Mass. 36
• Parties: Commonwealth v. George W. Pemberton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 36

Commonwealth v. George W. Pemberton

Supreme Court of Massachusetts

June 25, 1875

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Indictment for the murder of Margaret E. Bingham. Trial before Gray C. J., and Devens, J., who reported the case in substance as follows:

The evidence tended to show that the defendant killed the deceased, and at the same time by force and violence, but not being armed with a dangerous weapon, robbed, stole and took three gold rings from her fingers.

The defendant's counsel contended that as such robbery might, under the Gen. Sts. c. 160, § 24, be punished by imprisonment either for life or for any term of years, it was not a "crime punishable with imprisonment for life" within the meaning of the Gen. Sts. c. 160, § 1; and that if the homicide was committed in the commission of or attempt to commit such a robbery, it was not murder in the first degree, unless the homicide was committed with deliberately premeditated malice aforethought, or with extreme atrocity and cruelty. The government did not contend that the murder was committed with extreme atrocity and cruelty. The court refused to rule as contended for the defendant; but ruled and instructed the jury that if the homicide was committed by the defendant, with malice, in the commission of, or attempt to commit, the crime defined in the Gen. Sts. c. 160, § 24, he might be found guilty of murder in the first degree, without proof that the malice was deliberately premeditated malice aforethought, or other proof of malice beyond what was necessary to constitute murder as distinguished from manslaughter. The malice necessary to distinguish murder from manslaughter was defined to the jury in terms to which no exception was taken. To the refusal to rule as contended for, the defendant excepted.

The defendant's counsel further contended, and requested the court to rule, that, in order to constitute murder, either in the first or second degree, malice must be proved; that except in the case of murder with deliberately premeditated malice aforethought, malice might be presumed; but that this presumption might be rebutted, controlled or explained by the circumstances of the killing and all the facts which attended it, thereby reducing the crime charged to murder in the second degree, or manslaughter. And it was so ruled.

In the charge to the jury, they were instructed that the burden of proof was on the government to prove every material fact beyond a reasonable doubt; that under this indictment they might convict the defendant either of manslaughter or of murder; that manslaughter was a homicide committed without any legal excuse; that there need not be proof of malice to constitute manslaughter, but there must be proof of malice in order to constitute murder; that if they were not satisfied that the killing was malicious, if they were satisfied that it was done by the defendant, he could be convicted only of manslaughter; but if they were satisfied beyond a reasonable doubt that it was malicious, that is to say, wilfully done for the purpose of carrying out the defendant's own ends, regardless of the rights of others, it would be their duty to convict him of murder.

In relation to the degrees of murder, the jury were instructed that if the government proved murder, but did not prove beyond a reasonable doubt that it was murder in the first degree, it was murder in the second degree. The jury were fully instructed upon what was necessary to constitute "murder with deliberately premeditated malice aforethought," in terms to which no objection was made; and were further instructed as follows: "If you are satisfied beyond a reasonable doubt that the defendant killed her in committing or attempting to commit the crime of robbery, by taking these rings from her person, if you believe that he did it wilfully, recklessly, without regard to the rights of the deceased, you need not trouble yourselves about malice in the case, because no further malice is necessary to be proved if in fact he was engaged in the commission of or attempt to commit one of this class of crimes, because the statute says, if he was so doing, the murder was murder in the first degree, without proof of wilful, premeditated malice aforethought. Therefore if you find that he committed this act with deliberately premeditated malice aforethought, or without regard to that, if you find that he committed it in the commission of the crime of robbing Mrs. Bingham, then alive, of her rings, that would be murder in the first degree."

The jury were then instructed on the effect of insanity and of drunkenness upon the responsibility of the defendant, in terms to which no exception was taken, and, among others, as follows: "Upon the question of 'deliberately premeditated malice aforethought,' you may take into consideration the question if the man was drunk at the time of this homicide; was he so far drunk, so far overcome by liquor, at that time, as to be incapable of wilful and deliberate premeditation; if he was, you cannot find him guilty of murder in the first degree. But on the other branch of the statute, 'murder committed in the commission of or attempt to commit any crime punishable with death or imprisonment for life,' where no wilful premeditated malice is necessary to be proved, but only the ordinary, simplest kind of malice, that is, a wilful intention to carry out his own purpose in reckless disregard of the rights of others, there drunkenness can be no excuse for him."

The presiding judge concluded the charge as follows: "If you are satisfied beyond a reasonable doubt that the defendant was guilty of murder in the first degree, either by reason of his having acted with deliberately premeditated malice aforethought, or, without regard to such previous deliberation, that he committed the act in the commission of or attempt to commit a robbery from Mrs. Bingham, it will be your duty to find a verdict of murder in the first degree. If you are not satisfied of either of these facts, either of the deliberately premeditated malice, or of the homicide having been committed in the course of a robbery, but yet are satisfied that he committed it with a wilful purpose, and with a disregard of the rights of others, and, so doing, killed Mrs. Bingham, it will be your duty to return a verdict of murder in the second degree. If you are satisfied that he killed Mrs. Bingham without justifiable cause, but do not find malice in any sense, you may find him guilty of manslaughter. And if you do not find that he killed Mrs. Bingham, being an accountable agent and responsible for his acts, it will be your duty to acquit him."

The counsel for the defendant then stated that he did not fully understand that portion of the charge relating to the question of malice in case the murder was committed in an attempt to rob; that his contention was, that malice aforethought must be proved; but if the circumstances were such as to remove the first impression that there was malice aforethought, that then it would be murder in the second degree; that the jury would have a right to consider the whole act to see whether there was malice aforethought, and if the circumstances showed a desire to avoid killing the woman, it would be murder in the second degree."

The presiding judge then further instructed the jury as follows "The point taken by the defendant's counsel in his opening was, that malice must be proved; but except under the first ground in the definition of murder in the first degree--that is to say, a case of wilful premeditation, which is not the case now referred to--malice may be presumed, unless by the circumstances of the murder, the facts attending it, malice is disproved. We understand that to be the law. We take it exactly as stated by the counsel, and qualified by the admission of counsel. It is necessary, in order to find the defendant guilty of murder in the first degree, to prove, not only that the murder was committed, but that it was malicious; that is, in the first sense, as I have stated to you, with the wilful purpose of carrying out the defendant's own wishes, regardless of the rights of others. But we do not understand that if the government satisfies you that the murder was committed in...