Gabriel
Thomas was convicted of murder, and appeals. Reversed.
On
trial of a husband for murder of his wife while out in a
boat, there was evidence that just before the killing they
were quarreling; that he said, "If you don't hush, I
will take something and kill you," and that he
"would knock her on the head," and was then heard
beating her; that directly afterwards several heavy blows
were heard; that he then picked her up, and threw her
overboard, and when he came to where the witnesses were he
said she had fallen overboard; that he had not put his hands
on her nor beat her. A post mortem showed that death was
caused by breaking her neck. It did not appear that in
striking her he used a deadly weapon. Held error to omit to
instruct on murder in the second degree, where defendant
claimed that the evidence did not warrant a conviction of
murder in the first degree, on which an instruction was
given.
The
prisoner was indicted for the murder of Louisa Thomas, his
wife, and the jury found that he "was guilty of murder
in the first degree, as charged in the bill of
indictment." The prisoner moved to set aside the verdict
on the ground that the same was against the weight of the
evidence, and the motion was overruled, judgment was
pronounced, and the prisoner appealed.
Evidence
Daniel Simmons testified: "On the 12th of July last
near the mouth of Trent creek, I was fishing. Prisoner and
his wife passed us in a boat. I spoke. They went down
stopped, and fished a little, then went to Mason's Point
fastened the boat to a poplar stake on Bay river. George
Jones and I passed them, and they came back. We fastened our
boat, and went to fishing. Directly I heard a screaming down
at Mason's Point, looked around, and heard a beating like
striking with a fishing pole. This went on for five or ten
minutes. I heard an argument between the prisoner and his
wife. Heard him say, 'If you don't hush, I will take
something and kill you.' Directly after that I heard a
heavy lick. I looked down that way, and saw him in the boat.
Could not see her. After I missed her he struck two more
heavy licks. Immediately after he struck those licks he
stopped down, picked his wife up, and threw her overboard.
Then he stood up in the boat, looked around a minute or so,
unloosed his boat, and came down where we were. George Jones,
Malinda Russell, D. Best, and Ed. Russell were there with me.
George Jones and myself were in one boat and the others in
another, as far apart as from here to the door. The wind was
northeast. The prisoner was northeast of us. When he came up,
he said something about ' the darling of his, all the
friend he had, being overboard.' Malinda Jones asked him
if he killed Laura. He said, 'No, I have not put my hands
on her.' She said, 'Did I not hear you beating
her?' He said he did not put his hands on her. This was
on Friday, about 5 o'clock p.m. On Saturday following,
between 11 and 12 o'clock, the body was taken up. We went
down to the place. The stake had been moved. We found her
where the stake had been moved. This was the place where they
were the day before. She was dead. I did not notice her
condition." On cross-examination the witness stated that
the prisoner asked him to go and help get her up. "When
he first came to us he said he would knock her in the head. I
was half mile from the prisoner at the time. I have heard it
said to be half mile from Mason's Point to the mouth of
Trent creek."
George
Jones testified: "On the 12th of July, 1895, I was at
the mouth of Trent river in a boat. Prisoner and his wife
were in a boat at Mason's Point, half a mile away. I
was fishing. Heard a screaming down the river. After the
screaming, I stopped, and looked down that way, and saw his
wife go overboard into the river. Prisoner was standing in
the boat at that time. Then he left the stake, and came to
Malinda Russell's boat, which was 50 yards from where I
was. As soon as he got there he complained that he had lost
all the friend he had, applied to Daniel Simmons to get his
wife up. Simmons said, 'You will have to get an
officer.' I called Simmons' attention to it, and he
said, 'Yes, I saw it."'
D. Best
testified: "I was near the mouth of the Trent, fishing.
Heard screaming down the river. Prisoner's wife kept
crying. Heard him say, if she did not hush, he would knock
her in the head. During the time she was crying, there were
two in the boat. Prisoner came up to us, and asked Simmons to
help him to get his wife up; that she had fallen overboard.
Simmons said he would have to get an officer."
Malinda
Russell testified: "I was at Swindell's Bay. Could
see Mason's Point, half a mile away. Heard a woman
scream,--burst out crying. Prisoner told her, if she did not
hush, he would knock her in the head, or burst her head, I
don't remember which."
Dr.
Redding testified: "I am a practicing physician since
1842. Examined the body on the 15th of July. Found it lying
on platform. She was dead. I made a partial postmortem
examination. The neck was broken. I made incision from base
of skull. The bones of her neck were dislocated. This would
produce instant death. Her lungs were collapsed. No water in
the body. She could not have been drowned. She was dead
before she went into the water. It is possible for a fall to
dislocate the neck. I don't think a fall from the boat
would be sufficient to produce the dislocation."
H. R.
Simmons testified: "I was at Mason's Point on south
side on the day mentioned. Prisoner and his wife were
opposite Mason's Point in the boat,--canoe about 24 feet
long and 2 feet deep. The bait gave out. I went ashore, and
while there I heard a screaming up the river. Wind was
northeast when I went ashore. Prisoner was at stake, and when
I came out he was gone."
Judge's
charge: "The burden of proof is upon the state to
satisfy you beyond a reasonable doubt that prisoner
feloniously slew the deceased. Prisoner is not required to
show his innocence, and the fact that he has not gone on the
witness stand, or introduced any evidence, is not to receive
any consideration in your deliberations. The state is
required to satisfy the jury beyond a reasonable doubt of the
guilt of the prisoner; and, if the state has so satisfied
you, then your next inquiry is as to what degree of crime has
been committed,--whether murder in the first degree, murder
in the second degree, or manslaughter. The jury are
instructed that under our statute the prisoner cannot be
found guilty of murder in the firstdegree unless the jury are
satisfied from the evidence beyond a reasonable doubt not
only that he is guilty of feloniously killing the deceased,
but it must further appear from the evidence beyond a
reasonable doubt that such killing was done willfully,
deliberately, and with premeditation; that is, that it was
done intentionally, and with prior deliberation. And unless
all these appear from the evidence beyond a reasonable doubt,
the jury cannot find murder in the first degree. While the
law requires, in order to constitute murder of the first
degree, that the killing shall be willful, deliberate, and
premeditated, still it does not require that the willful
intent, premeditation, or deliberation shall exist for any
length of time before the crime is committed. It is
sufficient if there was a design and determination to kill
distinctly formed in the mind at any moment before or at the
time the blow was struck; and in this case, if the jury
believe from the evidence beyond areasonable doubt that
prisoner feloniously struck and killed deceased, as charged
in the indictment, and that before or at the time the blow
was struck he had formed in his mind a willful, deliberate,
and premeditated purpose and design to take the life of
deceased, and that the blow was struck in furtherance of that
design and purpose, and death ensues from the effect of the
blow, then he would be guilty of murder in the first degree.
To constitute murder in the first degree, there must have
been an unlawful killing, done purposely, and with
premeditation and malice. If a person has actually formed the
purpose maliciously to kill, and has deliberated and
premeditated upon it before he performs the act, and then
performs it, he is guilty of murder in the first degree,
however short the time may have been between the purpose and
its execution. It is not time which constitutes the
distinctive difference between murder in the first degree and
murder in the second degree. Deliberation and premeditation
are essential in order to constitutemurder in the first
degree. It matters not how short the time, if the party has
turned it over in his mind, and weighed and deliberated upon
it. Manslaughter is the unlawful and felonious killing of
another without any malice, and without any mature
deliberation whatever. If two persons fight upon a sudden
quarrel, and one slays the other, having the passion suddenly
aroused, and without malice, it is manslaughter. If the jury
should believe from the evidence that the prisoner and
deceased were engaged in a sudden quarrel and fight, and that
the prisoner slew the deceased, then it would be
manslaughter."
The
prisoner prayed the court to charge the jury that the denial
of the prisoner of the charge of killing his wife at the time
he went up to the boat should be taken as evidence in his
favor. This was given. The prisoner prayed the court to
charge the jury that, if they believe the evidence to be
true, it would
not justify a verdict of murder in the first degree. This was
refused.
The
prisoner excepted. Sentence of death was pronounced, and the
prisoner appealed.
The
Attorney General, for the State.
