Jenkins v. State

• Decision Date: 27 March 1967
• Citation: 230 A.2d 262
• Parties: Thornton A. JENKINS, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee. Clifford WARNER, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 262

230 A.2d 262

Thornton A. JENKINS, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Clifford WARNER, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

March 27, 1967.

Upon appeals from Superior Court judgments of conviction of burglary and murder. Reversed as to the murder convictions; affirmed as to the burglary convictions.

Henry N. Herndon, Jr., of Morris, James, Hitchens & Williams, Wilmington, for Thornton A. Jenkins, defendant below, appellant.

Richard J. Baker, Wilmington, for Clifford Warner, defendant below, appellant.

F. L. Peter Stone and Jay H. Conner, Deputy Attys. Gen., for the plaintiff below, appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

Thornton A. Jenkins was convicted of murder in the first degree and burglary in the fourth degree. Clifford Warner was convicted of murder in the second degree and burglary in the fourth degree. They were tried together and they appeal jointly.

Jenkins and Warner were arrested on the morning of March 17, 1965. Earlier, the police discovered the victim of an apparent homicide in a junkyard in Wilmington; death had occurred during the previous night. The arrests were made because police had found Jenkins and Warner loitering near the junkyard the prior evening.

Although the jury recommended mercy, the Trial Judge disregarded the recommendation and Jenkins was sentenced to death upon the first degree murder conviction; ¹ a sentence of five years imprisonment was imposed on the burglary conviction. Warner was sentenced to life imprisonment upon the second degree murder conviction and to five years imprisonment on the burglary conviction.

Other pertinent facts will be stated in the discussion of the grounds of appeal to which they relate.

I.

The dispositive issue as to Jenkins' appeal from the conviction of first degree murder is whether the evidence was sufficient to support the conviction. We think not.

The State proved that the victim was killed by the blow of a blunt instrument on the head; there was no evidence of the weapon used. Other injuries included abrasions and contusions of the face with lacerations of the mouth and chin; on the neck there was a cut five inches long; the nose and cheek bones were fractured as were several ribs; the liver was ruptured. The State argues from this that the evidence shows that the assailant cut the victim's throat and kicked or stomped him.

Except for testifying on Voir dire regarding the taking of his written statement, Jenkins did not take the stand at trial. In his statement, Jenkins admitted that he was in the junkyard with a companion at about 8:00 o'clock on the night before his arrest, stealing wire and fire extinguishers. He related that, while in the yard near the office, he heard the telephone ring and observed a shadow through an office window; that he and his companion ran across the yard and hid near a crane; that as they attempted to leave the yard, he was struck on the arm by someone whom he thought was the night watchman; that he and his companion 'grabbed' the man, he from one side and his companion from the other; that there was a struggle and the man fell to the ground. According to the statement, Jenkins did not have a weapon nor did he see a weapon; he did not recall the watchman saying anything because he had been drinking all day.

Jenkins' statement plus the testimony as to the nature of the victim's wounds constituted the only evidence in the case that could be related to express malice aforethought, an essential element of first degree murder in this State. ² We find such evidence insufficient to prove express malice aforethought.

The elements of express malice aforthought were stated by this Court in Bantum v. State, 7 Terry 487, 85 A.2d 741 (1952) as follows:

'* * * in addition to malice (which is common to both degrees of murder) there must exist the elements of formed design or intention to kill or to do great bodily harm and the sedate and deliberate mind of which the intention to kill or do great bodily harm is the product. Each of these elements must be proved by external circumstances, that is by circumstances other than the mere fact of the killing which fact, at common law, itself gave rise to an inference of malice (IV Blackstone, 201). Each element, together with malice, must be present and proved beyond a reasonable doubt.'

In State v. Gardner, Del., 203 A.2d 77 (1964), the elements of express malice were restated by this Court as follows:

'* * * express malice consists of 3 elements: (1) malice; (2) a formed design or intention to kill or to do great bodily harm; and (3) a sedate and deliberate mind of which that intention is the product.'

The defendant concedes that an unexplained killing may give rise to the presumption of malice. But it is asserted that the circumstantial evidence in this case was insufficient to prove the other two requisite elements of express malice aforethought. We agree because of that which was not proved as well as that which was proved.

First, there was no evidence fulfilling any of the accepted grounds upon which courts permit the inference of a 'formed design or intention to kill or to do great bodily harm' and 'a sedate and deliberate mind of which that intention is the product.' There was no evidence that Jenkins knew, or had any prior connection with, the victim. There was no evidence of deliberate selection and use of a deadly weapon; or of a lying in wait; or of antecedent threats. There was no proof of hatred, ill will, spite, or jealousy; or of a plan or scheme to kill or to do great bodily harm. See Bantum v. State, supra; State v. Winsett, Del., 205 A.2d 510, aff'd Del., 222 A.2d 781 (1966).

Secondly, the elements of express malice were not proved by the evidence adduced in the case. To establish a fact in issue, circumstancial evidence must be inconsistent with any other rational conclusion. Holland v. State, 9 Terry 559, 107 A.2d 920 (1954); Patrick v. State, Del., 277 A.2d 486 (1967). We are unable to say that the circumstantial evidence before us is inconsistent with any rational conclusion other than that Jenkins had a 'formed design or intention to kill or to do great bodily harm' to the victim and a 'sedate and deliberate mind of which that intention is the product.'

Taken at its best from the State's point of view, the evidence and inferences possible therefrom prove that the victim, a stranger to Jenkins, was badly beaten and died of his wounds. The evidence adduced is equally consistent with a killing perpetrated without design or premeditation, though with a 'depraved heart,' or a 'cruel and wicked indifference to human life.' See State v. Winsett, supra. This is tantamount, of course, to saying that the evidence is as reasonably consistent with implied malice and second degree murder ³ as with express malice and first degree murder. It follows that the circumstantial evidence in this case is insufficient to support a conviction of first degree murder.

Accordingly, it is the opinion of the Court that Jenkins' conviction of murder in the first degree must be reversed and the case remanded for new trial.

II.

The dispositive issue of Warner's appeal from the conviction of second degree murder is whether the jury was properly instructed regarding the 'felony-murder' rule.

The charge to the jury in this respect was as follows:

'* * * when one or more persons is engaged in the commission of a felony and there is an unintentional killing, the law will imply malice from the fact that a felony was committed and murder in the second degree will result.'

In response to the jury's inquiry made several hours after it retired to deliberate, the Trial Judge charged:

'Now talking again in the abstract, if two men set out to burglarize a place, let's say a building just for the purpose of this example, and that's all they set out to do, commit a burglary, and one stays outside as a lookout and one goes inside, and the one inside unintentionally kills somebody, then both persons are guilty of second degree murder. The fact that a felony was being committed implies the malice so we have implied malice and hence second degree murder. * * *'

It is our opinion that these jury instructions constituted reversible error.

Under the common law felony-murder rule, any homicide committed in the perpetration of any felony constituted murder. The question before us is whether the common law rule prevails in this State, unlimited and unqualified.

The felony-first degree murder rule is expressly limited by Statute to three felonies: rape, kidnapping and treason. 11 Del.C. § 571, supra. The defendant contends that the enumeration of three types of felonies in § 571 manifests a legislative intent to abolish the felony-murder rule as to all other felonies. We disagree.

A felony-second degree murder rule has long been recognized in Delaware, E.g., State v. Brown, 1 Houst.Cr.Cas. 539, 551 (1878) (obstructing railroad tracks); State v. Lodge, 9 Houst. 542, 33 A. 312 (1892) (abortion); State v. Blackburn, 7 Pennewill, 479, 75 A. 536 (1892) (robbery); State v. Fleetwood, 6 Pennewill, 153, 65 A. 772 (1906) (abortion); State v. Harris, 3 W.W.Harr. 236, 134 A. 639 (1923) (robbery). In 1958, when capital punishment was abolished in this State, the felony-murder aspect of the first degree murder statute was amended by specifying 'the crime of rape, kidnapping or treason' in place of 'any crime punishable with death', the language of the earlier § 571. ⁴ 51 Del.Laws, Chap. 347. It is clear on the face of that Statute that this change developed from the abolition of capital punishment, ⁵ and not from a legislative intent to abolish the felony-murder rule generally.

We conclude that by § 571 the General Assembly intended to prescribe the scope of the felony-first degree murder rule; that the long-standing...