People v. Palmer

• Decision Date: 04 June 1895
• Citation: 63 N.W. 656,105 Mich. 568
• Parties: PEOPLE v. PALMER.
• Court: Michigan Supreme Court

105 Mich. 568
63 N.W. 656

PEOPLE
v.
PALMER.

Supreme Court of Michigan.

June 4, 1895.

Error to circuit court, Saginaw county; Robert B. McKnight, Judge.

William Palmer was convicted of murder in the second degree, and brings error. Affirmed.

[63 N.W. 657]

John E. Nolan (George W. Weadock, of counsel), for appellant.

Fred A. Maynard, Atty. Gen., and E. A. Snow, Pros. Atty. (F. E. Emenck, of counsel), for the People.

GRANT, J.

For a statement of the issue in this case, we refer to 96 Mich. 580, 55 N. W. 994, where a brief statement of the case will be found. On the second trial the respondent was again convicted of murder in the second degree.

1. A witness by the name of Addett was also a witness for the people on the former trial. Upon the redirect examination of the witness, counsel for the people, for the sole purpose of refreshing the witness' recollection, called his attention to his testimony upon the former trial. This was permitted under objection and exception, and is now alleged as error. This practice is too thoroughly established to now be doubted. Beaubien v. Cicotte, 12 Mich. 459;McCreery v. Green, 38 Mich. 186, and authorities there cited; Battishill v. Humphreys, 64 Mich. 518, 38 N. W. 581. Respondent's counsel rely on Bashford v. People, 24 Mich. 246. That opinion, we think, recognizes the rule, but was based upon the fact that no occasion was shown for refreshing the witness' memory. In this case there was.

2. Error is next alleged upon the misconduct of the prosecuting attorney interrogating the defendant's witnesses upon the cross-examination. All the questions which were incompetent were promptly overruled by the circuit judge. One of the questions was as follows, asked of the defendant himself: “Then I understand you, if you are walking along with a gun, and you incidentally saw a revolver discharged in your direction, that you would take your gun, and cock it, and fire right into the crowd?” One Ruby, a witness for the defendant, testified that the deceased, Albert Palmer, had tried to hire the witness to kill William, the respondent. The story was such as to render a very rigid cross-examination of the witness' life and character competent. He admitted that he married his wife from a house of prostitution, and the question was then asked, “Was she a prostitute?” One other question of a similar character was asked, and both excluded. There was nothing to show that the questions were not asked in good faith, and we do not think they were of such a character as to justify the holding that they prejudiced the jury.

3. It is alleged as error that the court refused to give the following specific request on behalf of the respondent: “In determining which of the brothers was the aggressor, you may also take into consideration the testimony tending to show that, on the date of the tragedy, Albert was under the influence of liquor, and that, when under the influence of liquor, he was ugly and nervous and of quick temper, and that the defendant, up to the instant of the shooting, was in his usual frame of mind, pleasant and good-natured.” The charge is so full and complete, covering every possible ground of defense, that we do not think it was error to refuse this request. Besides, this request was rather in the nature of an argument based upon a portion of the testimony in the case. Undoubtedly, this question was fully argued by counsel to the jury. Such argumentative requests are of doubtful propriety. People v. Crawford, 48 Mich. 498, 12 N. W. 673. But, aside from this, the court specifically called the jury's attention to the acts, conduct, and threats of the deceased, the facts and circumstances surrounding the killing, and their relations prior thereto, and instructed the jury that they were all for their consideration.

4. In the opening part of his charge, the judge defined the different degrees of murder and also manslaughter. He said that, where a crime was divided into degrees, the jury may acquit of the principal charge, and find the prisoner guilty of the lesser offense; and that, when one is so charged, the jury should first consider the matter of the higher crime, and then go through the different degrees. After some further explanations, he withdrew from their consideration the subject of murder in the first degree, since he had been acquitted of that charge in a former trial. It is insisted that the charge is misleading and prejudicial because he first defined murder in the first degree, and instructed them that they should commence with the higher crime. A juror who could be thus misled or prejudiced would not possess intelligence sufficient to justify his sitting as a juror in any case.

5. It is next argued that the court erred in giving the following request: “Now, if, after he entered the saloon, he became aware that his brother Albert was there, and that he then formed the intent to take his brother Albert's life, taking into account whatever may have been in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though but a moment before he fired the fatal shot, formed in his mind the purpose of taking his brother's life, and pursuant to that purpose he shot and killed him, that would constitute the crime of murder.” The precise point urged is that there was no evidence to support such a theory, and that neither the prosecution nor the defense conducted the trial with reference to it. We cannot tell

[63 N.W. 658]

what the argument was to the jury. If there is any testimony upon which to base the charge of the court, the charge must be sustained. The respondent claimed that he had no murderous intent at any time. There was evidence that, when he entered the saloon, he appeared in his usual manner, and there was evidence that, when he raised the gun, his countenance changed. Whether this was because he saw his brother, or saw the pistol pointed at him, and whether it was necessary for him then to shoot in self-defense, are all questions for the jury, and made competent the charge complained of, which was given in connection with instructions covering the respondent's theories. The entire instructions covering this point are found in the margin.¹

FNAs has been said, the killing may have constituted manslaughter, or it may be entirely excusable, according to the circumstances, and according to the state of mind with which the act was committed; and the principal inquiry in this case must be limited finally to the question of the intent with which this act was done. At the danger of repeating, I say that the principal inquiry in this case must be limited finally to the question as to the intent with which William Palmer fired that gun on the day of the shooting. If, at any time before the shot from the revolver was fired. William Palmer had formed the intent and purpose in his own mind, with malice aforethought, to take the life of Albert Palmer, then the mere fact that, while he was engaged in issuing this challenge, his brother, knowing of the danger, was able to first pull a revolver, and to discharge it, would not affect the guilt of the defendant. That implies the forming in his mind, before the firing of the fatal shot, of the intent to take his brother's life; and that would be so because the firing in that case upon his part is immediately connected with the previous malicious and willful intent to take his life; and if Albert, seeing his danger, or knowing that Wm. Palmer was coming in his direction, armed with the fatal weapon, and with the challenge upon his lips, was able to draw his pistol and fire, that act would not affect the guilt of William Palmer. If the jury should find beyond a reasonable doubt that, before he fired the fatal shot, Wm. Palmer had formed a settled, premeditated, preconceived, or deliberately formed purpose to take his brother's life, and that in pursuance of that purpose he procured the gun and the cartridge, and loaded the gun, and carried it to the place where the shooting occurred, with the previously formed purpose, with malice aforethought, to there make use of that gun for the purpose of taking his brother's life, that would constitute the crime of murder, and you would be justified and it would be your duty to find the respondent guilty of murder in the second degree. Or if you should find the fact to be beyond a reasonable doubt that in the first intention Wm. Palmer procured this gun for an entirely innocent purpose, and that he loaded it with an innocent purpose, and intended to go hunting an eagle, as testified to by him, but that any time after procuring the gun, or at any time after entering the saloon, he formed a settled, deliberate purpose and intention, with malice aforethought, to take his brother's life, by shooting him with that gun, that would constitute the crime of murder; for if, at the time the shooting occurred, there was present in the mind of William Palmer this malicious purpose and intent to take...