State v. Ashley

• Decision Date: 01 July 1893
• Docket Number: 1440
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. LEONARD ASHLEY

13 So. 738

45 La.Ann. 1036

THE STATE OF LOUISIANA v. LEONARD ASHLEY

No. 1440

Supreme Court of Louisiana

July 1, 1893

APPEAL from the Twenty-first District Court, Parish of St. Charles. Rost, J.

E. B Dubuisson and Gervais Leche, District Attorneys, for the State, Appellee.

R McCulloh, for Defendant and Appellant.

OPINION

NICHOLLS C.J.

The defendant was indicted for murder, tried, convicted and sentenced to be hung. He has appealed. He asks a setting aside of the verdict and judgment on the ground that the court erroneously refused to charge the jury as requested by him in three special charges submitted to him, and on the ground that the record does not show that the indictment was found by the grand jury and returned into and presented by them in open court. The last objection urged is presented under an assignment of error -- the former in a bill of exception reserved.

The particular error assigned is not tenable. The record, though made up in a very unsatisfactory and careless manner, is not so much so as to call for a reversal. See the cases of State vs. Onmacht, 10 An. 198; State vs Mason, 32 An. 1018.

The special charges refused were as follows:

1. That to find the accused guilty of murder it is necessary that a malicious intent to kill existed at least five minutes before the killing.

2. That if the jury find that the accused was drunk and under the influence of liquor at the time of the killing, there can be no malice aforethought as charged and consequently no murder unless the accused drank for the purpose of committing the deed.

3. That the killing in the heat of blood or passion is not murder and the jury must take into consideration whether the accused was in liquor or not so as to become more easily violently angry.

In respect to his action and ruling the judge says: The jury was charged fully upon the law of murder, and specially as to malice, express or implied, and the court refused to charge the first special charge because the question of how long the malicious intent had existed was a matter of fact for the determination of the jury.

The court refused to charge the special charges second and third in the form presented because they were not considered good law as to matters of drunkenness. The court had explained fully to the jury the difference between murder and manslaughter and the law applicable to both, and with this reservation the bill is signed.

The contention of the accused that "in order to find him guilty of murder it was necessary that a malicious intent to kill should have existed at least five minutes before the killing" is utterly without merit.

If the malicious intent to kill exists at the time of the killing it is enough.

On this subject Wharton, in his "Law of Homicide," § 32, says:

"No human gauge existing by which duration of intent can be measured, we are obliged to resort for this purpose to the same probable reasoning by which the existence of intent is proved. A shoots B in the public streets without authority and without provocation. As reasonable beings usually premeditate any important step they take, we infer that A premeditated this shot, and this inference is sufficient proof on the lack of all other evidence of premeditation. This is what is meant by the expression we frequently meet with in the books that instantaneous intent is enough. It is not meant by this that it is enough if the defendant formed the intent coincidentally with the blow, for this we have no way of determining. What is meant is that even where we have no other proof of intent prior to the blow, from the blow we may infer the intent; hence it is constantly laid down that intent at the time of killing is enough. It is not intended to assert by this that a person who, under a sudden impulse kills another is guilty of murder. To say this would be unwarranted for the reason that we have no means of saying that a particular impulse is sudden. What we have a right, however, to say, and what the law means by this maxim to say, is this, that when a homicide is committed by weapons indicating design, then it is not necessary to prove that such design existed at any definite period before the fatal blow. From the very fact of a blow being struck, we...