State v. Hunter, 6127

• Court: United States State Supreme Court of Idaho
• Citation: 39 P.2d 301,55 Idaho 161
• Docket Number: 6127
• Parties: STATE, Respondent, v. LEWIS HUNTER, Appellant
• Decision Date: 29 December 1934

39 P.2d 301

55 Idaho 161

STATE, Respondent,
v.
LEWIS HUNTER, Appellant

No. 6127

Supreme Court of Idaho

December 29, 1934

CRIMINAL LAW-MURDER-"MALICE," DEFINITION OF-INSTRUCTIONS.

In murder prosecution, instruction in part that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive, held reversible error, notwithstanding court gave other instructions correctly defining malice.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Lewis Hunter was convicted of murder in the second degree, and appeals. Reversed and new trial granted.

Judgment reversed and a new trial granted.

E. L. Rayborn, for Appellant.

An instruction which tends to make the jury believe that they would be justified in finding that an act was done in malice if done in anger is erroneous, for a killing done in anger may amount only to manslaughter, or may be justifiable or excusable. This is not corrected by an instruction giving a correct statement of the law. (State v. Dunlap, 40 Idaho 630, 235 P. 432, 436; People v. Thomson, 92 Cal. 506, 28 P. 589; State v. Rogers, 30 Idaho 259, 163 P. 912; Bershenyi v. People, 71 Colo. 432, 207 P. 591.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

The instructions on malice, construed together, are correct. (29 C. J. 1086, note 49 (a); 2 Brickwood Sackett Inst., p. 1945, sec. 3062; State v. Rogers, 30 Idaho 259, 163 P. 912; State v. Dunlap, 40 Idaho 630, 235 P. 432; State v. Dong Sing, 35 Idaho 616, 208 P. 860.)

Even if erroneous the error in giving instruction No. 23 is not sufficient to justify a reversal. (State v. Rogers, supra; State v. Dunlap, supra; State v. Dong Sing, supra.)

HOLDEN, J. Morgan, J., concurs, WERNETTE, J., Concurring Specially. BUDGE, C. J., Givens, J., Dissenting.

OPINION

[55 Idaho 162] HOLDEN, J.

Appellant was convicted of murder in the second degree, and was sentenced to serve a term of from ten to twenty-five years in the state penitentiary, and appeals.

There are but two questions in this case requiring consideration: (First) Did the court [39 P.2d 302] commit reversible error in giving instruction No. 23, defining malice; and (second), Did the court err in refusing to give appellant's requested instruction No. 19?

Instruction No. 23, defining malice, reads as follows:

"The court instructs the jury that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will towards an individual, but is intended to denote an action flowing from any wicked and corrupt motive--a thing done with a wicked mind--where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty and fatally bent on mischief; hence malice is implied by law from any cool or deliberate or cruel act against another, however sudden, which shows an abandoned or malignant heart."

Appellant argues that the trial court thus, in effect, instructed the jury that it would be justified in finding that an act was done with malice, if done in anger, which would make all homicides murder, if committed in anger, whereas, a killing done in anger might amount only to manslaughter, which is the unlawful killing of a human being without malice. And it might be further argued, with much force, that the above definition of malice is also erroneous because it seems to remove manslaughter from the catalogue of homicides, in that there are many unlawful and unjustifiable motives which have never been classed as malicious.

[55 Idaho 163] The above-quoted instruction was first considered by this court and condemned as misleading and erroneous in State v. Rogers, 30 Idaho 259, 163 P. 912, decided in March, 1917, the opinion having been written by Chief Justice Budge. We quote paragraph 4 of the syllabus in that case:

"That portion of an instruction in a trial for homicide which reads: 'Malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive,' is erroneous, as it tends to lead the jury to believe that they would be justified in finding that an act was done with malice if done in anger. Whereas a killing done in anger might amount only to manslaughter."

That instruction was later and again condemned by this court as misleading and erroneous in State v. Dunlap, 40 Idaho 630, 235 P. 432, decided in April, 1925, eight years after the Rogers case, supra, was decided. And still later, about ten years after the Rogers case, supra, was decided, this court, in State v. Foyte, 43 Idaho 459, 252 P. 673, again had under consideration an instruction identically like that above quoted, and emphatically stated: "This identical instruction has hitherto twice been declared erroneous," and for that and other reasons reversed the judgment of conviction against Foyte.

The Rogers case, supra, upon the question of malice, was bottomed upon Commonwealth v. York, 50 Mass. 93, 9 Met. 93 at 104, 43 Am. Dec. 373, decided in March, 1845. In that case the Massachusetts court said:

"Malice, although in its popular sense it means hatred, ill will or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; the wilful doing of an injurious act without lawful excuse."

Continuing, the Massachusetts court, quoting from the opinion of Mr. Justice Bailey, in Bromage v. Prosser, 4 B. & C. 255, said:

[55 Idaho 164] "Malice, in common acceptation, means ill will against a person; but in its legal sense it means, a wrongful act, done intentionally, without just cause or excuse."

In March, 1850, in Commonwealth v. Webster, 59 Mass. 295, 5 Cush. 295, 52 Am. Dec. 711, five years after the York case, supra, was decided, and seventy-five years before the Rogers case, supra, was decided in this court, the Massachusetts court reversed the York case, supra; in fact, the above-quoted instruction, held by this court in the Rogers case, supra, to be misleading and erroneous, was taken from the Webster case, supra. However, if that instruction is actually misleading and erroneous, as this court has so emphatically held in at least three different cases, extending over a period of many years, then that instruction must necessarily have misled the jury in the case at bar; therefore, and for that reason, appellant Hunter could not have had a fair and impartial trial.

The dissenting opinion in this case is bottomed upon the Washington case of State v. Dolan, 17 Wash. 499, 50 P. 472. In that case the same instruction, defining malice, was given as was given in the case at bar, and seriously objected to, as in this case, but the Washington court in the Dolan case, supra, held that the instruction was good, and that defendant Dolan had no serious ground of complaint. In other words, the Washington court, in the Dolan case, supra, held exactly the contrary of what was held in the Rogers case, supra. Nevertheless, it is stated in the dissenting opinion that "While I am still of the opinion that the portion of the instruction criticized in State v. Rogers, [39 P.2d 303] supra, was erroneous, I am not of the opinion that the instruction herein constituted prejudicial error or such as would justify a reversal, particularly in view of the facts disclosed by the record, in the instant case and in view of the fact of the immediate qualification and explanation by the court."

We have fully and carefully examined the record in the Rogers case, supra, and find that the trial court instructed the jury to consider the instructions as a whole, as the trial [55 Idaho 165] court did in the case at bar, and, further, the instructions in the Rogers case, supra, defining the various degrees of murder, as well as malice, were substantially the same as in the case at bar, and, in addition to that, the explanation and qualifications of the term "malice" contained in the instruction given in the Rogers case, supra, and in this case, are identically the same.

For the purpose of completely removing objections to said instruction, made in State v. Rogers, State v. Dunlap, and State v. Foyte, supra, and in the case at bar, as well as the removal of the possibility of further like objections in future cases, to the effect that a jury would be justified, under such instruction, in finding that an act is done with malice, if done in anger, whereas a killing done in anger might be justifiable as in self-defense, or amount only to manslaughter, which is the unlawful killing of a human being without malice, and for the information of the bar, and future guidance of our trial courts, we have formulated, to be added at the close of the above-quoted instruction, the following:

You are further instructed...