Welty v. State

• Decision Date: 18 December 1912
• Docket Number: No. 22,023.,22,023.
• Parties: WELTY v. STATE.
• Court: Indiana Supreme Court

180 Ind. 411

100 N.E. 73

WELTY

v.STATE.

No. 22,023.¹

Supreme Court of Indiana.

Dec. 18, 1912.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Oscar Welty was convicted of murder in the second degree, and he appeals. Affirmed.

Instructions Nos. 15, 19, and 33, given by the court, were as follows:

(15) “To constitute murder in the first degree, there must be the elements of purpose, malice, and premeditation. If either of these elements be absent, there can be no conviction of this grade of felonious homicide. A premeditated design or purpose is one resulting from thought and reflection. A design conceived, and afterwards so deliberately considered as to become resolved and fixed, is regarded by the law as premeditated. When the design to take human life is formed after deliberation, and where there is adequate time and opportunity for deliberate thought, then, no matter how soon the felonious killing may follow the formation of the settled purpose, it is murder in the first degree. There need be no appreciable space of time between the formation of the intention to kill and the killing. It is as much premeditation, if it entered into the mind of the guilty agent a moment before the act, as if it entered years before. It is only neccessary that the act of killing be preceded by the concurrence of will, deliberation, and premeditation on the part of the slayer; but when there is no time and opportunity for deliberate thought, then the unlawful killing cannot be murder in the first degree.”

(19) “The characteristic distinction between murder and manslaughter is the existence of malice, express or implied. It therefore becomes necessary in every case of homicide to ascertain with some precision the nature of legal malice, and what evidence is requisite to establish its existence. The rule is that malice is implied in every case of intentional killing, and, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be established by the party charged, unless they arise out of the evidence produced against him to prove the killing, where the fact of killing is proved by satisfactory evidence, and there are no circumstances disclosed tending to show justification or excuse, and there is nothing to rebut the natural presumption of malice. This rule is founded on plain and obvious principles that a person must be presumed to intend that which he voluntarily and willfully does, and that he must intend all the natural, probable, and usual consequences of his own acts. On the other hand, if death, though willfully intended, appear to have been inflicted immediately after some great provocation given by deceased, which provocation is deemed by the law adequate to excite sudden and angry passions, this fact rebuts the presumption of malice; but the killing is still unlawful, because a man is bound to curb his passions and the offense is accordingly manslaughter.”

(33) “A mortal wound, given with a deadly weapon in the previous possession of the slayer, without any or upon very slight provocation, is prima facie willful and premeditated.”

Sheridan & Gruber, of Frankfort, and Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Thomas M. Honon, Atty. Gen., Thomas H. Branaman, of Indianapolis, Edwin Corr, of Bloomington, Jas. E. McCullough, of Indianapolis, and A. G. Manning, of Kokomo, for the State.

MYERS, J.

Appellant was prosecuted upon indictment returned by the grand jury of Howard county, Ind., for the alleged murder of one Edwards, and was convicted of murder in the second degree, and imprisoned for life.

The indictment was in four counts, a motion to quash the fourth of which was sustained, and the errors assigned, and not waived, are in overruling appellant's motion for a new trial. The questions presented arise principally upon instructions given, and instructions requested and refused. In the order of presentation, instruction No. 26a is as follows: “If homicide be committed in a sudden heat, by the use of a deadly weapon, no provocation by mere words will reduce the killing to manslaughter. The question should never be: Was there anger merely? But: Was there legal provocation to such anger? The use of a dangerous weapon under a provocation by words only, or under no provocation, is always evidence of malice aforethought. To constitute malice aforethought, it is only necessary that there be a formed design to kill; and such design may be conceived at the moment the fatal stroke is given, as well as a long time before. Malice aforethought means the intention to kill; and when such means are used as are likely to produce death, the legal presumption is that death was intended.”

As to this instruction the contention of appellant is that, by reason of other instructions given, the use of the words, “no provocation given by mere words will reduce the killing to manslaughter,” was error, for the reason that under our statute the mere proof of killing fails to show the class of homicide, whether murder, manslaughter, or excusable killing, and that there is no presumption that the killing in the first instance is murder, and therefore needs to be reduced; that the burden is upon the state to establish a crime of higher degree than manslaughter; that the defendant was not bound to establish facts sufficient to reduce it from murder to manslaughter; also that it is erroneous in the use of the following words: “The use of a dangerous weapon under a provocation by words only, or under no provocation, is always evidence of malice aforethought.” Also that to instruct that “the use of a dangerous weapon is always evidence of malice aforethought” is erroneous, where there is evidence tending to prove homicide under circumstances to constitute manslaughter, for the reason that it points out one particular fact, and advises that malice flows therefrom, and advises that the jury may disregard all other evidence tending to negative malice, and, generally, that where the killing is admitted, and the facts are detailed by eyewitnesses, and evidence is introduced placing the question of malice in issue, it is error to instruct that any particular act, or fact, raises a presumption, or inference of malice, for the reason that it advises the jury that they may disregard all other evidence tending to negative malice, and that malice must be proven beyond a reasonable doubt, under the continued presumption of innocence which attends a defendant charged with crime through every step of a trial, and that this instruction violated the presumption of innocence, and that, malice being a material fact to constitute murder in the second degree, it is a question of fact for the jury upon all the evidence, and that this instruction withdrew the question of manslaughter from the jury.

[1][2] In order to a full and correct understanding of the instruction in this case, it is necessary to look at the evidence. There is evidence tending to show that the deceased did not bear a good reputation for peace and quietude, and that he had some reputation known to appellant, as quarrelsome, and carried a knife, and had had some brawls. There is other evidence that he was peaceable and well-disposed. The same thing, however, appears to have been true in some measure as to appellant's moral character. He was always armed, though he was a peace officer, but had many brawls. The evidence shows that appellant was called upon by the deceased, with whom appellant had had several difficulties in a business way, and appellant claimed the deceased had made threats against him, to prepare a conditional contract of purchase of a horse by the deceased from one Thomas. It was at about 7:30 o'clock p. m. on a day in the middle of July The deceased was dissatisfied with the manner in which the contract was drawn, and arose to leave the room, and stated that they (himself and Thomas) would go somewhere else to have the contract drawn, though it was satisfactory to Thomas as drawn by appellant. Appellant grabbed deceased roughly, and demanded pay for the work done. The deceased broke away twice, and started to go down a stairway leading from appellant's office, when appellant shoved or kicked him, at which time deceased struck him two or three times on the arm with a small stick, weighing four ounces, which he picked up in the hallway, and went on down to the foot of the stairway, from which he called up the stairway several times to Thomas to come on, and they would go somewhere else and get the contract drawn. Appellant returned at once after kicking, or kicking at, or shoving the deceased, and stated to Thomas that he had been struck on the arm by Edwards, and, as Edwards continued to call up the stairway, appellant started down the stairs with the remark that he would fix, or kill the - - - -. Appellant claims that Edwards, in calling up the stairway, called him vile name. Thomas, in appellant's room with him, with an equal opportunity to hear, heard nothing of that kind. Appellant, upon making the remark attributed to him, went down the stairway to the bottom, where deceased was, at which time there is evidence that appellant was cursing, and also evidence that, when appellant came down the stairs, the deceased seemed scared, and tried to go away, and that appellant again said, “You black - - - -, I am going to kill you,” and struck deceased, and that the deceased threw up his arm as if to push, or strike, or ward off a blow, dropped the small stick he had in his hand, and started to move off briskly, or to run, at which time, when something like 15 feet from appellant, and moving away from him, appellant fired at him, and upon his reaching the corner of a street, appellant following him at about the same gait, if any difference gaining upon him, deceased turned around the corner of a building to the left, and passed 10 or 15 feet beyond the corner and in front of an automobile adjoining...