State v. Phinney

• Decision Date: 18 April 1907
• Citation: 13 Idaho 307,89 P. 634
• Parties: STATE, Respondent, v. LEE PHINNEY, Appellant
• Court: Idaho Supreme Court

89 P. 634

13 Idaho 307

STATE, Respondent, v. LEE PHINNEY, Appellant

Supreme Court of Idaho

April 18, 1907

CRIMINAL LAW-MURDER PERPETRATED BY MEANS OF POISON-OFFENSES INCLUDED IN CHARGE OF MURDER-MANSLAUGHTER-PROVINCE OF JURY TO FIND GRADE OF OFFENSE.

1. Under an information charging murder as having been perpetrated by means of poison, it is in the province of the jury to find the degree or grade of the offense of which the defendant is guilty, and under the provisions of sections 7925 and 7926, Revised Statutes, the court cannot deprive the jury of such right by a peremptory instruction to the effect that the defendant, if guilty at all, is guilty of murder in the first degree.

2. Before a jury can find a defendant guilty of murder "perpetrated by means of poison, or by any other means whatever, they must first find that there has been an "unlawful killing with malice aforethought." The mere fact that a killing has been accomplished by means of poison does not of itself establish "malice aforethought."

3. Every murder necessarily includes the offense of murder in the first and second degree and manslaughter, and in all cases of murder the degree of criminality must be left to the jury to be found by them as a matter of fact. In a trial for murder, the statute (Revised Statutes, sections 7925 and 7926), leaves the question of the degree of the offense to be settled by the verdict of the jury, and the fact that the offense is charged to have been committed by the administration of poison, under section 6562, Revised Statutes, does not deprive the jury of the right or relieve them of the duty of finding the degree of the offense.

4. The fact that the jury finds the defendant guilty of a lower degree of offense than that established by the evidence is not a ground or cause for reversal on appeal from a judgment of conviction.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Defendant was informed against by the prosecuting attorney, charged with the crime of murder in the first degree, committed by the administration of poison. Defendant was convicted of the crime of manslaughter and appealed from the judgment and an order denying his motion for a new trial. Affirmed.

Affirmed.

Clay McNamee, for Appellant.

Section 6562, Revised Statutes, dividing the crime of murder into two degrees, has been repeatedly construed by the supreme court of California.

"Where the case comes within either of these classes, the test question, 'Is the killing willful, deliberate and premeditated?' is answered by the statute itself, and the jury have no option but to find the prisoner guilty of the first degree." (People v. Nichol, 34 Cal. 211; People v. Mooney, 2 Idaho 24, 2 P. 876; People v Sanchez, 24 Cal. 17, 29.)

The information by its allegations expressly charges murder by the administration of poison to the deceased. The statute declares in express terms that such a homicide is murder in the first degree. The entire evidence in the case shows that the crime was either murder in the first degree, or that no crime was committed.

It is error to instruct the jury as to murder in the second degree when, under the facts shown by the evidence, if defendant committed the homicide at all, he is guilty of murder in the first degree, and no other grade of homicide. (Dresback v. State, 38 Ohio St. 365; Pliemling v. State, 46 Wis. 516, 523, 1 N.W. 278; State v. Alexander, 66 Mo. 148; State v. Talbott, 73 Mo. 347; State v Kilgore, 70 Mo. 547; State v. Stoeckli, 71 Mo. 559; State v. Evans, 1 Marv. (Del.) 477, 41 A. 136; State v. Rose, 129 N.C. 575, 40 S.E. 83; State v. Greenleaf, 71 N.H. 606, 54 A. 38, 44; State v. Bertoch, 112 Iowa 195, 83 N.W. 967; State v. Burns, 124 Iowa 207, 99 N.W. 721; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N.W. 665; Washington v. State, 36 Ga. 222; Thornton v. Commonwealth, 24 Gratt. (Va.) 657; Washington v. State, 1 Tex. App. 647; Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. Rep. 649; People v. Byrnes, 30 Cal. 206.)

Defendants, tried for murder in the first degree, are prejudiced by instructions to the jury inducing them to convict for murder in the second degree, and are entitled to a new trial, where the case is not one for instructions on the law concerning murder in the second degree. (State v. Mahly, 68 Mo. 315; State v. Talbott, 73 Mo. 347; Dresback v. State, 38 Ohio St. 365; Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. Rep. 649.)

The same is true relative to the giving of an instruction as to manslaughter. (Dresback v. State, 38 Ohio St. 365; State v. Wagner, 78 Mo. 644, 47 Am. Rep. 133; State v. Kilgore, 70 Mo. 547; State v. Alexander, 66 Mo. 148; Pliemling v. State, 46 Wis. 516-523, 1 N.W. 278.)

J. J. Guheen, Attorney General, B. S. Crow, Prosecuting Attorney, for Nez Perce County, and Edwin Snow, for the State.

No harm has been done to appellant, since the verdict of the jury was for a lower grade of offense than murder in the second degree. (State v. Alcorn, 7 Idaho 612, 97 Am. St. Rep. 252, 64 P. 1014.)

On an indictment for murder no injury is done defendant by an instruction to the jury as to the crime of murder, which instruction may be erroneous, if, on the trial, the jury find a verdict of manslaughter. (people v. Swift, 66 Cal. 348, 5 P. 505; People v. Gordon, 88 Cal. 422, 26 P. 502; People v. O'Neill, 67 Cal. 378, 7 P. 790; People v. Boling, 83 Cal. 380, 23 P. 421; Foskey v. State, 119 Ga. 72, 45 S.E. 967; State v. Riddle, 179 Mo. 287, 78 S.W. 606; Downing v. State, 11 Wyo. 86, 70 P. 833, 73 P. 758.)

In all cases of homicide the jury may properly return a verdict of murder in the second degree or of manslaughter. (State v. Schieler, 4 Idaho 120, 37 P. 272; State v. Hardy, 4 Idaho 478, 42 P. 507; People v. Dunn, 1 Idaho 77; People v. Walter, 1 Idaho 386; People v. Iams, 57 Cal. 115; State v. Lindsay, 19 Nev. 47, 3 Am. St. Rep. 776, 5 P. 822; State v. Dowd, 19 Conn. 388; 2 Wharton on Criminal Law, 6th ed., 1112; State v. Underwood, 35 Wash. 558, 77 P. 865; State v. Howard, 33 Wash. 250, 74 P. 382; State v. Greer, 11 Wash. 244, 39 P. 874; In re Alcorn, 7 Idaho 101, 60 P. 561; People v. Muhlner, 115 Cal. 303, 47 P. 128; State v. Ellington, 4 Idaho 529, 43 P. 62.)

The supreme court of Idaho has uniformly followed the literal meaning of section 7926 of the Revised Statutes of 1887: "The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

From the evidence in the case at bar the crime of manslaughter is fairly deducible. For the jury is entitled to construe all or any of the evidence in the case as most favorable to the defendant. (United States v. Mingo, 2 Curt. C. C. 1. F. Cas. No. 15, 781; Read v. Commonwealth, 22 Gratt. (Va.) 924; Wharton on Homicide, 2d ed., 644-669.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

The defendant was prosecuted upon information, charged with the crime of murder committed by the administration of poison. The information charged that the defendant "injected into the body and blood of the said Jeff Letton, by means of a certain hypodermic syringe and needle, a certain deadly drug and poison, to wit, morphine, from the effects of which said poison injected and administered into his body as aforesaid, the said Jeff Letton did languish, and languishing, afterward on the sixth day of July, 1906, did die."

Upon the trial it appeared that while Letton was in a drunken sleep and unconscious, the defendant injected morphine into his arm, and that Letton never recovered consciousness thereafter, and died on the following day from the effects of the poison. The defendant was convicted of the crime of manslaughter and has appealed, and insists that the court erred in instructing the jury that they might bring in any one of four verdicts, namely, guilty of murder in the first degree, second degree, manslaughter, or not guilty. The court instructed the jury as to the law governing the different degrees of murder, and advised them that they might return a verdict for any one of the three grades of crime included in the information, or a verdict of not guilty. The defendant insists that since the charge against him was the crime of murder "perpetrated by means of poison," the jury should have returned only one of two verdicts; namely, guilty of murder in the first degree, or not guilty.

Section 6562 defines the degrees of murder and designates the class of cases in which the offense shall be murder of the first degree and those in which it shall be murder in the second degree. The section is as follows: "All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murder are of the second degree."

It will be noted that the statute says "All murder perpetrated by means of poison," etc., shall be murder of the first degree. Section 6560 defines murder as follows: "Murder is the unlawful killing of a human being, with malice aforethought." Section 6565, Revised Statutes defines manslaughter as follows: "Manslaughter is the unlawful killing of a human being without malice," and thereupon divides it into two degrees and defines each degree. It should be borne in mind that all killing "which is perpetrated by means of poison, is not murder of the first degree or even murder of the second degree, but all murder so committed is murder of the first degree. Before...