State v. Salgado
| Decision Date | 22 July 1915 |
| Docket Number | 2129. |
| Citation | 150 P. 764,38 Nev. 413,38 Nev. 64 |
| Parties | STATE v. SALGADO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Elko County; E. J. L. Taber, Judge.
On rehearing. Reversed.
For former opinion, see 145 P. 919.
Harold P. Hale and E. A. Klein, both of Elko, for appellant.
George B. Thatcher, Atty. Gen., and E. P. Carville, Dist. Atty., of Elko, for the State.
A rehearing was granted in this case in order that further consideration might be given to the following instruction:
" 'Irresistible passion,' as used in these instructions, means something more than mere anger or irritation. It means that at the time of the act the reason is disturbed or obscured by passion to an extent which might render ordinary men of fair average disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment.
Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree of the offense where the killing was done with express malice, as heretofore defined under our statute express malice necessarily renders any murder, murder of the first degree.
And if the jury should find from the evidence the existence of facts and circumstances establishing beyond a reasonable doubt that the defendant had such a reckless disregard of human life as necessarily includes a formed design against the life of Bessie Andy, the killing, if it amounts to murder, would be on express malice, and consequently would be murder of the first degree."
In the former opinion in this case (145 P. 919) this instruction was not considered. A more extended examination of the instruction, with a view to its bearing upon the peculiar facts of this case, convinces us that it is both erroneous and prejudicial.
The court had previously instructed the jury, in the language of the statute, that:
"Murder is the unlawful killing of a human being, with malice aforethought, either express or implied.
Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart."
The jury were also instructed as follows:
The expression, "irresistible passion," was used in none of the instructions given, excepting the one quoted supra. The expression appears in two rejected instructions, one of which dealt with the law of manslaughter. Reading the definitions of "irresistible passion" and "express malice" into the instruction and we may have as a resultant, something like this: Nor will the fact that the killing was done "without due deliberation," if proven so to have been done, be sufficient to reduce the degree of the offense if the killing was done with deliberate intention.
It is contended that irresistible passion and express malice may coexist, and that the instruction is not fundamentally erroneous. For illustration, it is said that if A. forms a deliberate design unlawfully to take the life of B, but that before A. is able to carry out the preconceived design something intervenes to cause in A. an irresistible passion, such subsequent aroused passion would not operate to reduce the degree of homicide. It might be sufficient observation upon the illustration to say that in such a case it would be proper to instruct the jury that the subsequent irresistible passion would not operate to change the previously formed deliberate design, so as to effect a substituted and different causation for the killing. Under such a state of facts, it would be the duty of the court to instruct with reference to such facts so that the jury would not be confused. No such facts are presented in this case, and we need only consider what we think to be true as a general proposition of the law of homicide, to wit, that irresistible passion and express malice cannot coexist. If irresistible passion is "proven to have existed," the homicide could not have been committed with express malice, and it could not be murder of the first degree. Authority exists in support of the proposition that implied malice and sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter. As said in Wharton on Homicide (3d Ed.) § 163:
In Commonwealth v. Eckerd, 174 Pa. 137, 34 A. 305, it was held, in effect, that passion, even though sudden, must be upon sufficient provocation to repel an implication of malice. In Brewer v. State, 160 Ala. 66, 75, 49 So. 336, it was held that where the evidence showed that the defendant acted with malice, the fact that such malice may be accompanied with passion or anger aroused by deceased will not reduce the offense to manslaughter. See, also, Bohanon v. State, 15 Neb. 209, 18 N.W. 129; State v. Ashley, 45 La. Ann. 1036, 13 So. 738; State v. Johnson, 23 N.C. 354, 35 Am. Dec. 742. While malice and passion may coexist and a homicide be the result of both, "express malice" and "irresistible passion," as those terms are defined in the statute, cannot coexist. In express malice there is premeditation and deliberation, which are wanting in irresistible passion. As said in Nye v. People, 35 Mich. 19, it would be a--
"perversion of terms to apply the term 'deliberate' to any act which is done on a sudden impulse." See, also, Brown v. Commonwealth, 86 Va. 466, 10 S.E. 745.
The instruction complained of in this case not only erroneously assumes that irresistible passion and express malice may coexist, but that if they do coexist, the element of express malice renders the killing murder in the first degree. The proposition of law that express malice, if determined to exist, renders the killing murder of the first degree, taken by itself, may be conceded to be a correct statement of the law. Taken in connection with the other part of the instruction, it renders the whole instruction confusing contradictory, erroneous, and prejudicial. If the facts shown by the evidence were in this case sufficient in the minds of the jury to cause in the defendant a heat of passion insufficient to reduce the crime to manslaughter, but sufficient to prevent the killing from being with that deliberate premeditation required to constitute murder in the first degree, it would be the duty of the jury to bring in a verdict of murder in the second degree. 21 Cyc. 732. The evidence was such in this case as to make it of the greatest importance to the defendant that the jury be correctly instructed upon the law of murder in the first and in the second degree. Defendant had taken Bessie Andy, the deceased, and the father and mother of the latter to a Thanksgiving Day dinner at a Chinese restaurant and, having finished the dinner, were on their way to the Indian camp which was the home of the father and mother of the deceased, when they met the white man Odell and the half-breed Indian or Mexican. Prior to this meeting there is nothing to indicate but that the relationship between defendant and the Indian girl, Bessie Andy, was the most cordial. Defendant testified that he had been living with Bessie Andy for several years previous in the relation of husband and wife. When they met the other parties on the street some casual words of greeting were spoken. Then something was said in the Indian language by Bessie Andy to the half breed and by him to her. What the conversation was does not appear from the testimony of the state's witnesses. The defendant testified that the half breed wanted Bessie to go with him to Golconda, and threatened that if she did not do so he would kill Bessie and the defendant. Whatever this conversation was, it caused defendant to become suddenly enraged and to make a violent assault upon Bessie Andy. He knocked her down with his fist, and was beating her when Odell and the half breed interfered in her behalf. Odell testified that the half breed struck defendant, and that he also struck defendant several times in the face; that he had his arm around defendant's neck and was hitting him when defendant drew his knife from his pocket. Odell and the half breed then ran. Defendant chased the half breed into a nearby saloon and stabbed him. Immediately thereafter he came out of the saloon to where Bessie Andy was standing and stabbed her to death. The whole proceeding did not...
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...(i.e., "a serious and highly provoking injury"). NRS 200.040(2); NRS 200.050. Indeed, as we noted in State v. Salgado, 38 Nev. 413, 416-17, 150 P. 764, 765 (1915) (quoting Francis Wharton, Law of Homicide § 163 (3d [a]uthority exists in support of the proposition that implied malice and sud......
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...1207; Hill v. State, 58 Nev. 28, 68 P.2d 569; State v. Lewis, 50 Nev. 212, 230, 255 P. 1002; State v. Salgado, 38 Nev. 64, 76, 145 P. 919, 150 P. 764. Nos. and 9 were enlarged photographs of the body of deceased found in the trunk of defendant's hired Ford sedan at the time of his arrest in......
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