People v. McDonald

• Decision Date: 14 September 1881
• Citation: 2 Idaho 10,1 P. 345
• Parties: PEOPLE v. McDONALD
• Court: Idaho Supreme Court

1 P. 345

2 Idaho 10

PEOPLE v. McDONALD

Supreme Court of Idaho

September 14, 1881

INSTRUCTIONS-MALICE-MURDER.-An instruction that "malice is always to be implied when the circumstances of the killing show an abandoned and malignant heart" is not objectionable under a statute which provides that "malice is to be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart."

SAME.-It is not necessary to give an instruction in the exact language of the statute, and it would be erroneous, in some cases, to do so; it is sufficient if the substance is correctly given.

APPEAL from District Court, Owyhee County. Affirmed.

Affirmed.

Alanson Smith, for Appellant.

The court erred in defining the crime of murder. When the court instructs the jury to find that the circumstances of the killing showed an abandoned and malignant heart from some or any of the circumstances, while the statute requires them to find it from all the circumstances, the instruction is erroneous. Where considerable provocation appears, there is no implied malice. It must appear that there was malice aforethought, either express or implied, to support a verdict of murder of any degree. (2 Bishop's Criminal Law, 6th ed., 675, 697.) The defendant should be found guilty of the lesser offense, to wit, murder in the second degree, where the verdict is found upon a presumption of guilt arising from the evidence, or upon the conclusive implication of malice. (People v. Walter, 1 Idaho, 386; Johnson v Commonwealth, 24 Pa. St. 386; State v McCormick, 27 Iowa 402; People v. Gibson, 17 Cal. 283, and cases there cited.)

Thomas D. Cahalan, for the People.

If the judge is not asked to charge the jury on a particular point at the trial, it is not error if he omits to do so. (Hall v. Weir, 1 Allen, 261; Burns v. Sutherland, 7 Pa. St. 103; Davis v. Elliott, 15 Gray, 90; Jones v. State, 20 Ohio 34; Bain v. Doran, 54 Pa. St. 124; Tomlinson v. Wallace, 16 Wis 224-235; Pennock v. Dialogue, 2 Pet. 1; Koehler v. Wilson, 40 Iowa 183; Miller v. Bryan, 3 Iowa, 58; People v. Haun, 44 Cal. 96.) If the court cannot give instructions without modifying the same, he may refuse to give them. (Beran v. Hayden, 13 Iowa 122-127; Grimes v. Martin, 10 Iowa 347; Carpenter v. Stilwell, 11 N.Y. 61-79; Lucas v. Brooks, 18 Wall. 436; Hodges v. Cooper, 43 N.Y. 216; Indianapolis etc. R. R. Co. v. Horst, 93 U.S. 291.) The court may refuse to give instructions asked where it has already instructed fully on those points. (Kelly v. Jackson, 6 Pet. 622-628; Indianapolis etc. R. R. Co. v. Horst, 93 U.S. 291, 295; Jones v. Jones, 71 Ill. 562; People v. Murray, 41 Cal. 66; People v. Kelly, 28 Cal. 423; People v. Strong, 30 Cal. 151; People v. Williams, 32 Cal. 280; State v. O'Connor, 11 Nev. 416; State v. Waterman, 1 Nev. 543.)

MORGAN C. J.

OPINION

MORGAN, C. J.

Defendant was indicted, tried, and convicted of murder in the first degree. The first point urged upon the attention of the court, and which seems to be relied upon by the appellant as the main point, or as the only ground upon which he asks a reversal of the judgment below and an order for a new trial, is "that the court erred in the instruction giving the definition of murder, or in the direction as to when malice is to be implied. The language of the statute is that malice is to be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." The language of the court in the instruction is: "Malice is always to be implied when the circumstances of the killing showed an abandoned and malignant heart." The language of the statute is in the alternative, and is equivalent to the following: Malice shall be implied either when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart; that is, in either case malice shall be implied. It is proper, then, that the court should give either cause for the implication that may, in his judgment, be applicable to the evidence.

The question remains, then, whether leaving out the word "all" makes such a change in the statute as to mislead the jury. It is proper, first, to inquire what kind of an error or omission would authorize an appellate court to reverse a judgment of a court below and direct a new trial. It is not error to give general instructions, and if an omission occurs in a general instruction, unless it actually misleads the jury and procures a wrong verdict, it cannot be assigned for error. Thompson, in his work on Charging the Jury, section 81, says a party cannot, in a court of error, avail himself of an omission which he made no effort to have supplied at the time, and cites a large number of authorities running through the reports of a number of the states. Neither is it sufficient if there is a mere tendency in the instructions to mislead the jury; in such a case also the...