Murphy v. People

• Decision Date: 24 January 1887
• Citation: 9 Colo. 435,13 P. 528
• Parties: MURPHY v. PEOPLE.
• Court: Colorado Supreme Court

13 P. 528

9 Colo. 435

MURPHY v. PEOPLE.

Supreme Court of Colorado

January 24, 1887

Error to district court, Arapahoe county.

Indictment for murder.

Patterson & Thomas and I. White for plaintiff in error.

Theo. H. Thomas, Atty. Gen., for defendants in error.

ELBERT J.

The testimony leaves no doubt that the violence inflicted by the defendant upon the person of the deceased was the immediate cause of her death. The kicks with his boot upon her side and abdomen as she lay upon the ground, the bruises upon her body testifying to their force and violence, the ruptured liver beneath the bruises, and the three or four pints of blood in the abdominal cavity, as revealed by the autopsy, stand so closely connected and associated as to afford no room for reasonable doubt as to the cause of the death that so swiftly followed.

The defendant was indicted for murder. The jury found him guilty of voluntary manslaughter. The chief point urged by counsel for the prisoner is that 'the verdict is contrary to the law and the evidence.' The position, stated more specifically, is: (1) That, where the assault is made with the hands and feet, intent to kill will not be implied; (2) that there was an absence of provocation, one of the essential elements of voluntary manslaughter; that the verdict, for these reasons, should have been involuntary manslaughter.

If we turn to the Criminal Code, (chapter 25, p. 297 Gen. St.,) we find murder defined as 'the unlawful killing of a human being with malice aforethought, either express or implied. The unlawful killing may be inflicted by any of the unlawful means by which death may be occasioned.' Passing over the statutory definition of express malice as not pertinent in this case, we find that section 21 declares that 'malice shall be implied when no considerable provocation appears, or when the circumstances of the killing show an abandoned and malignant heart.' It will also be noticed that the same section declares that murder perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life, shall be deemed murder of the first degree. Section 25, defining involuntary manslaughter, declares that 'where such involuntary killing shall happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.'

It is contended that while malice may be implied in the two cases specified by the statute, namely, 'when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart,' that it can only be so implied when the homicide is committed by the use of a weapon or instrument calculated to destroy life; that, when the hands and feet are alone employed as the means of assault, malice will not be implied so as to warrant a verdict of murder, nor will any intent to kill be implied so as to warrant a verdict of voluntary manslaughter. The proposition cannot be admitted in the unqualified terms of its assertion. The doctrine, with its proper qualifications, is well stated by BIGELOW, J., in the case of Com. v. Fox, 7 Gray, 585: 'The court cannot sustain the broad proposition laid down by the counsel for the prisoner that, in the absence of all evidence of express malice, there is no aspect of this case which will authorize the jury to convict the prisoner of murder. It is undoubtedly true that in many cases, in order to prove implied malice in the sense in which that term is understood in the law, it is necessary to prove that the act of homicide was committed by the use of a weapon or instrument calculated to take life or inflict grievous bodily harm. As a party is held legally responsible for the natural or necessary consequences of his own unlawful act, the law implies malice where the circumstances of the homicide are such as to show that the act proceeded from an evil disposition, or a mind and heart regardless of social duty and fatally bent on mischief. This is proved, in many cases, by the use of weapons or other means which necessarily endanger life. But where death ensues from acts or means which, under the circumstances, could not have been supposed to endanger life, or to inflict great bodily injury, the law will not imply malice, because it cannot be reasonably inferred that the party charged intended the consequences which flowed from his act. If, therefore, death should ensue from an attack made with the hands and feet only, on a person of mature years, and in full health and strength, the law would not imply malice, because, ordinarily, death would not be caused by the use of such means. But the inference would be quite different if the same assault and battery were committed on an infant of tender years, or upon a person enfeebled by old age or worn out with disease. In such cases, the circumstances under which the act was committed would show a disposition quite as evil and malignant, and the use of means calculated to inflict as grievous bodily harm, as the employment of deadly weapons on a person in the full possession of his health and strength. So it has been held that the willful exposure of a person laboring under sickness to a severe cold, whereby his disease was aggravated and death was occasioned, would be evidence of implied malice sufficient to warrant a conviction of murder. 1 Hawk. c. 3, §§ 4, 5. In like manner, a slight blow on the head of a new-born infant, which, if inflicted on an adult would be harmless, but which necessarily would endanger the life and actually caused the death of the child, is proof upon which a jury might well find a party guilty of murder. The real question is whether the circumstances of the homicide are such as to satisfy the jury that the party charged acted from an unlawful and evil design, with an intent to do grievous bodily harm, and that his acts were of a nature calculated to endanger life. From such acts the law will imply malice. In the present case, therefore, if the evidence satisfies the jury that the prisoner, at the time he committed the assault and battery on the deceased, knew, or had reasonable cause to believe, that she was sick and suffering from disease, and was thereby put in such a weak and feeble condition that his attack would endanger her life, or inflict on her great bodily harm, or hasten her death, it would justify the jury in finding implied malice, and convicting the prisoner of murder. But if he was not aware of her sickness, and had no reason to suppose that his acts would do her material injury, or any harm beyond that which would be occasioned by similar acts to a person in health, there would be no sufficient evidence of implied malice; and, although the acts of the prisoner hastened the death of his wife, he could be convicted of manslaughter only. Macklin's Case, 2 Lewin, Cr. Cas. 225; 1 East, P. C. 344.'

Accepting the proposition of counsel for the prisoner that our statutes must be read and construed in connection with the rule announced in the foregoing case, we proceed to consider the evidence in this case pertinent to its application. The prisoner and the deceased had lived together for some four or five years before the latter's death. She was the mistress of the prisoner, and about 26 years of age. She had long been intemperate. 'During the year prior to her death, her dissipation had been excessive. She was frequently seen reeling upon the street. She fell upon the floor in saloons and upon sidewalks. She was boisterous and quarrelsome in public places, and policemen frequently took her home. She indulged in profanity, and but three months before her death, in one of her drunken frenzies, she shot at the defendant in his own house, the bullet passing through the rim of his hat, and lodging in the ceiling.' The evidence discloses that the week before her death she was more or less intoxicated every day. Mrs. Ayers testifies that she was in bed almost every day of this week,--sick,--and that she complained of pain and difficulty in breathing. Her health was impaired and her body enfeebled by these vicious habits. Dr. Whitehill says that he treated her for chronic inflammation of the liver in the summer of 1883 in Leadville; that she was addicted then to the use of liquor to some extent; that she was a woman who was regarded as in delicate health, and as a chronic sufferer. On the evening prior to the homicide she had been on a drunken debauch. It is in evidence that, about 9 o'clock P. M., she went with a witness, Mrs. Ayers, to her home. She was under the influence of liquor when she started. Before going, she sent for and procured a quart bottle of whisky. This she took with her, and upon reaching Mrs. Ayers' house she rapidly became more intoxicated. While attempting to pick up a ring which she had dropped, she fell upon her knees, hands, and face, her face striking the floor. At half-past 11 o'clock, Mrs. Ayers started home with her. She steadied her across the street, and saw her last going into the door of her house. Mrs. Ruckman testifies that she saw her after this out in the street. She was staggering; and, when Mrs. Ruckman last saw her, she was leaning against the gate-post. Mrs. Mason appears to have seen her later than this. It was after 12 o'clock when she (witness) went to her window, and saw the deceased in her room across the alley. Her face was red and swollen, her eyes were blackened, and her hair dishevelled. This was the last seen of the deceased until about 4 o'clock of the same morning, when she and the defendant were in the alley together, and when, as testified by Mrs. Mason, the violence was...