Turner v. Commonwealth

• Decision Date: 14 December 1915
• Citation: 167 Ky. 365
• Court: Kentucky Court of Appeals
• Parties: Turner v. Commonwealth.

167 Ky. 365

Turner v. Commonwealth.

Court of Appeals of Kentucky.

Decided December 14, 1915.

Appeal from Logan Circuit Court.

S. R. CREWDSON and J. W. LINTON for appellant.

JAMES GARNETT, Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE MILLER — Affirming.

By this appeal Harrison Turner complains of a judgment of the Logan Circuit Court convicting him of the murder of Herschel Lewis, and fixing his punishment at confinement in the penitentiary for life.

It is not contended that the judgment is not supported by the evidence. It is insisted, however, that we should reverse the judgment of conviction, (1) because the court erroneously instructed the jury; (2) because of misconduct upon the part of the Commonwealth's attorney during the trial; and (3) because of the admission of incompetent evidence offered by the Commonwealth.

1. The instruction complained of reads as follows:

"The court instructs the jury that if they believe from the evidence to the exclusion of a reasonable doubt that the defendant, Harrison Turner, in Logan county, Kentucky, before the finding of the indictment herein, not in his necessary, or apparently necessary self-defense, unlawfully, wilfully, feloniously, and maliciously shot at and wounded one Herschel Lewis, upon his body and person, with a pistol, a deadly weapon, with the intent to kill the person so shot and wounded, and that the person died within a year and a day thereafter, then in that event the jury will find the defendant guilty as charged in the indictment, and will fix his punishment at death, or at confinement in the State penitentiary for life, in their discretion."

The complaint urged against this instruction is that it used the word "maliciously" instead of the phrase "with malice aforethought" in describing what character of act upon appellant's part in killing Herschel Lewis, would authorize a conviction for murder.

The indictment charges that "Turner did unlawfully, willfully, feloniously, and with malice aforethought, kill, murder, and slay Herschel Lewis," &c. But, in instructing the jury, the court substituted the word "maliciously" for the words "with malice aforethought," which were used in the indictment.

In Kennedy v. Commonwealth, 12 Bush, 348, where the instruction followed the usual form and required the jury to believe, from the evidence, that the killing was done with malice aforethought, in order to convict, the opinion incidentally remarked that "malice is one thing and aforethought is another, but both are necessary to constitute murder, and the jury had been so told; and there is nothing in either of the instructions under consideration to indicate that the court meant that either might be dispensed with."

In Shelton v. Commonwealth, 145 Ky., 546, and again in Watkins v. Commonwealth, 146 Ky., 451, 38 L. R. A. (N. S.), 1052, the instruction authorized a conviction for murder in case the killing was "wilfully" done, and this court condemned the instruction in each case, saying it should have required the jury to believe the killing was done wilfully, unlawfully and with malice aforethought, in order to convict of murder. But in each of the last two named cases the instruction required neither malice nor a felonious intent in order to convict; it only required that the killing should have been "wilfully" done. In none of the cases above mentioned was the condemned instruction similar to the instruction before us.

But in Tutt v. Commonwealth (1898), 104 Ky., 299, this precise question was passed upon, and the judgment of conviction was reversed, in an opinion by Judge Guffy, solely because the instruction in that case, as here, used the term "maliciously" in lieu of the phrase "with malice aforethought."

And the Attorney General frankly concedes that if we adhere to the ruling in the Tutt case, the judgment in the case at bar must be reversed.

So, we have for decision this important question: Is it necessary for an instruction upon murder to predicate a conviction upon a finding that the killing was committed unlawfully, wilfully, and "with malice aforethought"?; or is an instruction sufficient if it authorizes a conviction for murder in case the killing was unlawfully, wilfully, feloniously and "maliciously" done? Blackstone follows Coke's definition that murder is the unlawful killing of any reasonable creature in being with malice aforethought, either express or implied, 4 Bl. Com., 195. And Blackstone further says that malice aforethought, or malice prepense, is the grand criterion which, in his day, distinguished murder from other killing. Ib., 198.

In Bouvier's Dictionary "malice aforethought" is said to be a technical phrase employed in indictments, which, with the word "murder," must be used to distinguish the felonious killing called murder from what is called manslaughter. See also 1 Bish. Crim. Law., sec. 425.

In the description of murder, the words do not imply deliberation, or the lapse of considerable time between the malicious intent, but they rather denote purpose and design in contradistinction to accident and mischance. Commonwealth v. Webster, 5 Cush., 306, 52 Am. Dec., 711.

And the intent necessary to constitute malice aforethought need not have existed for any particular time before the act of killing; it may spring up at the instant, and may be inferred from the fact of the killing. Allen v. United States, 164 U. S., 492. But premeditation may be an element showing malice when otherwise it would not sufficiently appear. 2 Bish. Crim. Law, sec. 667; Beauchamp v. State, 6 Blackf., 299; State v. Simmons, 3 Ala., 497.

Murder, at common law, being the killing of one human being by another, with malice aforethought, the words malice aforethought, in their legal sense, have often been defined to be the intentional killing of one human being by another, without legal justification or excuse, and under circumstances which are insufficient to reduce the crime to manslaughter. If this is a correct definition of malice aforethought, then it logically follows that murder is the intentional killing of one human being by another without legal justification or excuse, and under circumstances which are insufficient to reduce the crime to manslaughter. And, consequently, if the jury is told what constitutes legal justification or excuse, and what circumstances will reduce the killing to manslaughter, they have all the law they need to determine whether the particular homicide is murder or not, without the mention of the confusing words "malice aforethought."

Under this view, the term "malice aforethought" no longer serves any useful purpose in an instruction upon murder, while its use often causes trouble and confusion. The history of the term as used in the administration of the criminal law sustains this conclusion.

In dealing with the subject of malice, Sir James Fitzjames Stephen says:

"In reference to murder, `malice' (the word `aforethought' is practically unmeaning), means any one of the following states of mind, preceding or co-existing with the act or omission by which death is caused:

"(a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not.

"(b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

"(c) An intent to commit any felony whatever.

"(d) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace, or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed. * * *

"The result is that the word seldom if ever bears its natural sense (except it may be in some of the rules as to libel), and that if the law were codified it might with great advantage be altogether omitted from the criminal law. This course was taken both in the Indian Penal Code, and in the Draft Criminal Code of 1879.

"It may be worth while to notice the reason why the word `malice' is unsuitable for the purpose to which it has been applied. It is that in its simple and natural meaning it has reference to the motives which prompt a man's conduct, and not to his intentions or actions. A `malicious' act, according to the common use of language, is an act of which the motive is a wicked pleasure in giving pain. To make motive the test of criminality is always popular, because it tends to bring law into harmony with popular feeling, but it is open to the following conclusive objections:

"First, one great object of criminal law is to prevent certain acts which are injurious to society. But the mischief of an act depends upon the intention, not upon the motives of the agent. If a man intentionally burns down a house, or intentionally wounds the owner, the injury to the owner and the danger to others is equally great, whether the offender's motive was or was not one in which the public in general would be inclined to sympathise.

"Secondly, for the reasons already given, it is impossible to determine with any approach to precision, what were a man's motives for any given act. They are always mixed, and they generally vary.

"Thirdly, lawyers are so fully sensible of these considerations that when the word `malice' is embodied in the definition of a crime the natural consequence of using the word is always evaded by legal fictions. Malice is divided into `express' and `constructive' or `implied' malice, or, as it is sometimes called, `malice in law' and `malice in fact.' The effect of this...