McHargue v. Commonwealth

• Decision Date: 15 October 1929
• Citation: 21 S.W.2d 115,231 Ky. 82
• Parties: McHARGUE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

21 S.W.2d 115

231 Ky. 82

McHARGUE v. COMMONWEALTH.

Court of Appeals of Kentucky

October 15, 1929

Appeal from Circuit Court, Rockcastle County.

Charles McHargue was convicted of murder, and he appeals. Reversed.

C. C Williams and H. J. McClure, both of Mt. Vernon, and W. N Flippin, of Somerset, for appellant.

J. S Sandusky, of Monticello, G. M. Ballard, of Mt. Vernon, B. J Bethurum, of Somerset, and J. W. Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen., for the Commonwealth.

STANLEY C.

The appellant, Charles McHargue, his brother, James McHargue, and Dolphie Mullins, were neighbors and fellow employees at a limekiln at Pine Hill, in Rockcastle county. Charles McHargue has been convicted of the murder of Mullins and sentenced to life imprisonment. Several grounds for a reversal are submitted to the court, one of which is that the evidence against him, if taken as true, proved him guilty of manslaughter at the most, and not of murder, and, therefore, the verdict is not sustained by the evidence. This ground is well taken, and he is entitled to a reversal thereon.

The homicide occurred at the limekiln on a Sunday in November, 1928. Mullins and James McHargue had jointly cultivated 10 acres of corn, and it appeared there had been some misunderstanding between them with respect to gathering it. On this Sunday both Mullins and the appellant, Charles McHargue, were at work at the kiln. James McHargue testified that he had come over to a point near the kiln to assist in making a coffin for a child, and as he came by the place where Mullins was at work they again discussed the matter of gathering the corn. A fight between them ensued. The evidence is conflicting as to who precipitated the affray, which resulted in Mullins violently striking James McHargue in the head with a shovel, rendering him unconscious. At the time the appellant, Charles McHargue, was on a lower floor or platform and not in sight of the combatants. He was in the act of spreading out his dinner when some one above him at the place where the fight was going on screamed, "Doffey Mullins has knocked Jim McHargue's brains out." The appellant hearing that immediately rushed up the short flight of steps and there beheld his brother prostrate on the floor with blood gushing from his head; and, according to the state's evidence, the appellant declared that no one could treat his brother that way and fired his pistol at Mullins, who was in the act of turning away. According to the evidence in behalf of defendant, Mullins was standing over Jim McHargue with the uplifted shovel with which he had struck him and attempted to strike the defendant also. There is no dispute that Mullins did turn and flee, and that appellant continued firing at him, one shot taking effect in the back. Mullins died a short while thereafter. The evidence is uncontradicted that appellant and deceased had been on the best of terms and there had been no trouble of any kind between them. The defendant explained that he carried the pistol because he had considerable money on his person for payment to coal diggers employed by him in a small mine which he owned.

The court gave instructions on murder, voluntary manslaughter, self-defense, and a qualified instruction on the defense of his brother. He also gave the usual instructions on reasonable doubt and the meaning of terms used.

In considering the ground upon which the case is reversed, namely, that the verdict is flagrantly against the evidence, it is well to note the characteristic distinguishing willful murder and voluntary manslaughter, namely, the presence or absence of malice prepence or malice aforethought.

So long as all killing incidental to a felonious intent was punishable by death, there was no practical need for a classification or division of such homicides into degrees or different offenses. For generations juries refused to convict unless there was shown a specific intent and deliberate purpose to take life. So the need for a classification became more and more apparent. Through gradual processes and progressive considerations of mercy and humaneness, it was declared that death should only be inflicted as punishment for "homicides specifically and maliciously intended." Accordingly, it became necessary to distinguish between this class of murder and murder in which there was no such premeditated intent. In the evolution of the law, the respective offenses became known as murder and manslaughter. Subsequently statutes-the earliest in Pennsylvania-divided murder into two classes: Murder in the first degree being a homicide with a specific, premeditated, and deliberate intent to take life; murder in the second degree when that intent was absent. Wharton's Criminal Law, §§ 501-503. But this state has never so classified homicide, the common-law distinction or classification of murder and manslaughter yet obtaining. Manslaughter has been divided into voluntary manslaughter, for which statutory penalties are prescribed, and involuntary manslaughter, which remains a common-law offense for which no punishment has been fixed by statute and which is, therefore, punishable only by fine and imprisonment in the county jail. Spriggs v. Commonwealth, 113 Ky. 724, 68 S.W. 1087, 24 Ky. Law Rep. 540.

An intentional, unnecessary, or perhaps a cruel killing is not always willful murder. It may be excusable if done in apparently necessary self-defense, or may be manslaughter when done without malice and in sudden affray or in sudden heat and passion. Farris v. Commonwealth, 14 Bush, 362.

As stated in 13 R.C.L. 789: "The law recognizes no emotional state accompanying intentional homicide other than malice, the ingredient of murder, and passion, which accompanies the homicidal act in cases of voluntary manslaughter. Hence, if the element of provocation is lacking, the crime-the other elements common to both murder and manslaughter appearing in the case-must of necessity be murder."

Premeditated design or malice aforethought and heat and passion are contradictory states of minds and cannot exist at the same time with reference to the act of homicide. The existence of one element excludes the other. This is usually a question of fact for the jury to determine; but where there is no dispute as to the facts, or if only the evidence heard against the accused be considered, it becomes a matter of law for the court to adjudge.

To constitute murder there must have been a fixed design carrying with it deliberation and premeditation or predetermination (Buckhannon v. Commonwealth, 86 Ky. 110, 5 S.W. 358, 9 Ky. Law Rep. 411), and such predetermination must occupy the mind at the time of the killing. Frazier v. Commonwealth, 10 Ky. Ops. 136. These elements "consist in the exercise of the judgment in weighing and considering and forming and determining the intent or design to kill." Wharton's Criminal Law, § 419. The reader is referred to Turner v. Commonwealth, 167 Ky. 365, 180 S.W. 768, L.R.A. 1918A, 329, for a very interesting and exhaustive history and explanation of the phrase "malice aforethought," the opinion being prepared by Chief Justice Miller. This essential ingredient may be expressed or implied from the proven circumstances. It is a stereotyped expression in the form of instruction that the phrase ""malice aforethought" means a predetermination to do the act of killing without legal excuse, and it is immaterial how suddenly or recently before the killing such determination was formed.

The definition and scope of manslaughter has been variously expressed. See Lucas v. Commonwealth (Ky.) 21 S.W.(2d) 113, this day decided. The editors of Ruling Case Law, in vol. 13, at page 785, have compiled from leading cases and given us this statement: "If the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is not the result of wickedness of heart or cruelty or recklessness of disposition,-then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of voluntary manslaughter. The absence of malice and the influence of sudden passion are the characteristics of this offense, as defined by the common law authorities and also by statutory enactment. The cases are generally harmonious that there must be sufficient cause of provocation and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting-if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool and reason has resumed its sway, the killing will be murder. The distinction between murder and voluntary manslaughter is found in the dividing line between malicious action on the one hand and action in the heat of passion on the other."

In our further assistance we may analyze the constituent elements of manslaughter. The phrase "sudden heat and passion," or, as sometimes expressed, "sudden heat of passion," or "hot blood," is something less than impulse of the moment (which may arise from malice). Henson v. Commonwealth, 11 S.W. 471, 11 Ky. Law Rep 314. The definition of passion given in Hocker v. Commonwealth, 111 S.W. 676, 33 Ky. Law Rep. 944 (as it is stated in Roberson, § 373) is: "Passion is that state of mind when it is powerfully acted upon and influenced by some external cause, and when used to describe an...