Darry v. People

6 N.Y. 120

• Court: New York Court of Appeals
• Decided: July 1, 1854
• Status: Published

Opinion

Seldeüt, J.

The substitution of new and original phraseology in our statute defining the crime of murder (2 R. S., 651, § 5) was the result of an effort to clear the subject of the obscurity which grew out of the inaccurate use of some of the terms of the common law. To render this effort successful, it is necessary to construe the new terms used according to their plain and natural import. A resort to the rejected terms, in order to interpret those newly adopted, would obviously reinvest the subject with much of the previous uncertainty, and render abortive this attempt at elucidation.

When, therefore, it is said, as has been said by several of our judges, that the first subdivision of § 5 of our statute was intended to define murder from express, and the second and third from implied malice, no light whatever is thrown upon the true interpetration of the section.

A glance at the law of murder, as it existed prior to the Revised Statutes, will make it evident that the terms express and implied malice, and malice aforethought, used so copiously in every definition of murder at common law, must have been intentionally excluded from the statute; and I think it equally clear, in view of the great looseness and inaccuracy with which these terms had been used, that this exclusion was wise. There is no difference in the nature or degree of the malice intended, whether it be called express or implied, when these terms are used in their most appropriate sense. If properly applied, they refer only to the evidence by which the existence of malice is established. Both alike, the one no less than the other, mean actual malice, malice shown by the proof to have really existed. It is called implied malice when it is inferred from the naked fact of the homicide, and express when established by other evidence. That this is the true original meaning of these terms, when used in connection with this crime, is apparent, I think, from the natural import of the words themselves, as well as from their accustomed use in other branches of the law. They are appropriate terms to express different modes of proof, and are habitually used for that purpose, but are not adapted to the description of different degrees of malicious intent. The phrase, implied malice, is properly applied to a case where the evidence shows that the accused did the act which caused the death, but where there is no other proof going to show the existence or the want of malice. In such cases the law does not impute a malicious intent, irrespective of its real existence, but it presumes, in accordance with the settled rules of evidence, that such an intent did actually exist.

York’s case (9 Metc., 93) was a case of this description, and the rule as well as the reason upon which it rests are there stated by Chief Justice Shaw. In speaking of the mere act of destroying life, he says: “ The natural and necessary conclusion and inference from such an act wilfully done, without apparent excuse, are that it was done malo animo, in pursuance of a wrongful, injurious purpose, previously though perhaps suddenly formed, and is therefore a homicide with malice aforethought, which is the true definition of murder. And it appears to us that this is not a forced, arbitrary, technical or artificial presumption of law, but a natural and necessary inference from the fact.” Again he says t “A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequence of his own act.”

This case and this reasoning afford a clear illustration of what is properly meant by the term implied malice. But the same term has also been frequently, but as I maintain inappropriately used, to express a different meaning. It has been extensively applied to cases of constructive murder, that is, to those cases where, although the want of any actual intent to take life is conceded, yet the law, in view of some other malicious or criminal intent, punishes the offence as murder; and to cases of death produced through an utter wantonness and recklessness as to life in general, as well as to cases where the life of an officer is unintentionally taken when engaged in the performance of his duty. (15 Viner's Abr., title “Murder,” E; Rex v. Oneby, 2 Ld. Raym., 1488; People v. Enoch, 13 Wend., 159, per Nelson, J.)

Now, what is meant by this application of the term implied malice, indiscriminately to all cases arising under either of these several cases? It is apparent that, so far as any actual criminal intent exists, it may be expressly proved in these cases as well as any others. It follows, therefore, that in cases where such proof is given, implied malice, if it means anything, must mean malice which has no existence in fact, but which the law imputes to the guilty party. This implication of a species of malice which did not exist seems to have been invented for the.purpose of bringing cases of constructive murder, so called, within what was supposed to be the legal definition of the crime. It was evidently supposed that the word malice meant in all cases ill will towards some person or persons, and hence that the phrase, malice aforethought, used in indictments for murder, necessarily imputed a charge of premeditated design to kill. To meet this averment, which in cases of constructive murder was not required to be proved, the law was said to imply, that is, to supply by mere fiction, the requisite degree of malice. There was, however, in truth not the slightest necessity for this fiction; the interpretation of the word malice on which it was founded being entirely erroneous. The idea that the term malice necessarily imports ill will towards another, when used in a legal sense, is abundantly refuted by Mr. Justice Baxley, in the case of Bromage v. Prosser (4 Barn. & Cress., 255). He says: “Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse.”

This passage is cited and approved by Chief Justice Shaw, in York's case (9 Metc., 93), and there are many other authorities to the same effect. To show that the view here presented is in entire accordance with the ancient law, I will quote a passage or two from Foster, one of the earliest and clearest writers on criminal law. (Foster's Or. L., 256,7.) He says: “ When the law maketh use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow, restrained sense to which the modem use of the word malice is apt to lead one, a principle of malevolence to particulars; for the law by the term malice in this instance meaneth that the fact hath been attended with such circumstances as are the ordinary symptoms of a widked, depraved, malignant spirit.” Again he says : “ And I believe that most, if not all the cases which in the books are ranged under the head of implied malice, will, if carefully adverted to, be found to turn upon this single point, that the fact hath been attended with such circumstances as carry in them a plain indication of. a heart regardless of social duty, and fatally bent on mischief.”

This is the precise doctrine for which I contend. It shows that the resort to a fictitious imputation of a species of malice, having no existence in fact, called implied malice, was gratuitous and unnecessary; and being so, it could scarcely fail to be pernicious. It tended to introduce confusion, through the indiscriminate use of the word implied in two conflicting senses; one importing an inference of actual malice from facts proved, the other an imputation of fictitious malice without proof.

In putting a construction, therefore, upon our statute, we should lay aside entirely the common law terms of express and implied malice, as calculated to mislead and to engender false ideas, and interpret the phraseology, as before insisted, according to its ordinary import. Looking then at the statute itself and construing it in this spirit, what is its real scope and meaning ?

In endeavoring to answer this inquiry it is important to keep in view; certain rules which reason and experience have established as calculated to aid in the just interpretation of statutes.

If the enactment be subdivided, each subdivision should be construed so as to provide for a separate and distinct class of cases, and so as to include all the cases it is intended to embrace and to exclude all others. Each clause is also to be construed in the light of all the rest, and so as to give force and effect to every sentence and word; and such a construction is to be put upon the whole, if possible, that no case or class of cases will fall within more than one branch of the act.

These rules are necessary in order to attain that precision and certainty which is the object of the subdivision.

There is, I believe, no great contrariety of opinion as to the meaning of the first subdivision of § 5 of the statute in question. If there is any difficulty in this respect, it is in ascertaining whether the last clause of that subdivision, viz., “ or of any human being,” was intended to provide solely for cases where the premeditated design, although not aimed at the person actually killed, was nevertheless directed to some particular individual; or whether it also includes cases where it was aimed indiscriminately at a multitude of persons or at human life in general.

That the former is the trae interpretation was insisted by the prisoner’s counsel, upon the argument, for several reasons. He urged, first, that on comparison of $ 5 of our statute with the description of murder from malice aforethought express, as given in East’s P. C., 223, § 10, and considering that the revisors, in their note to § 5, expressly say that it was compiled partly from East, it is apparent that the first two subdivisions of § 5 were copied substantially from the definition given by East; the only material difference being that the first two subdivisions of East are in our statute condensed into one, and that as both subdivisions in East are plainly and expressly confined to cases of malice to a particular individual, the corresponding subdivision in our statute should receive the same construction. Again, he contended that, as the first clause of this subdivision was clearly confined to cases of particular malice, the last being directly connected with it should be held to belong to the same class, agreeably to the maxim noscitur a sociis. (Broom’s Leg. Max., 294; Evans v. Stevans, 4 Term R., 225.)

I have very little hesitation in adopting the construction of this subdivision thus contended for, not only for the reasons given by the counsel, but for others which will appear when we take into consideration the second subdivision;

This brings us to the difficult part of our task; that of interpreting the second subdivision of the section in question. This subdivision was incidentally and partially considered in The People v. Rector (19 Wend., 569) and in The People v. White (24 Wend., 520). But the examination given to it in those cases was cursory merely, and no attempt was made to subject it to that rigid analysis which is indispensable to the development of its true meaning.

It becomes necessary, therefore, in my view, to look at the subject as an original question. In doing so I shall inquire, first, whether an actual intent to destroy life is in all cases essential to constitute the crime of murder, under this subdivision. The affirmative of this question was very strenuously contended for by the counsel for the prisoner, upon the argument, and great learning and ability were displayed in the effort to maintain it. He contended that there was a substantial identity of design and object between our statute and that of Pennsylvania, passed in 1794; and that as the latter statute iiad been construed to limit murder as a capital crime, except in a few specified cases of constructive murder, to those cases in which an actual intent to take life exists, ours should receive the same construction; and insisted that the first subdivision of § 5 being intended to provide for all cases where the hostile intent was specially aimed at the life of some one individual, the second subdivision was designed to embrace only those cases excluded from the first, where the intent, although deadly, does not single out its object.

But there are serious objections to taking this view of the latter subdivision, conceding the construction thus put upon the first to be, as I "think it is, correct. Of what use, upon this supposition, are the words “ imminently dangerous to others?” Are they not rendered mere unmeaning verbiage by assuming that an actual intent to take life is essential to the crime under this subdivision ? Again, if such an intent is necessary, the requirement must be found in the definition of the crime given by the statute. The* only affirmative words indicative of the intent required are these : “ a depraved mind, regardless of human life.” These words describe the state of mind which must accompany the act. Do they express a formed intent to destroy life ? Clearly not. No sound reason can be given why the legislature should have resorted to such equivocal and circuitous phraseology to express that simple intent. Such an intent is expressed in clear terms in the subdivision which precedes as well as that which follows the one under review: would they not have expressed the same intent in the same way in this, if that was what was meant? Would they have resorted to phraseology not only peculiar, but such as does not import what, upon this supposition, they intended ? It seems to me not.

But this is not all. The phraseology of the subdivision is taken substantially from the writers upon the common law. An absoMte-4B-toat~te-4ake life was not necessary at common law,, to constitute-the crime describecf by this pfíaseology. As to this there is no room for doubt. The first general division of homicide, as given by East, is as follows: “From malice aforethought express: where the deliberate purpose of the perpetrator was to deprive another of life, or to do him some great bodily harm.” (1 East's P. C., 222, § 9.) This general division of homicide is again divided by East into three subdivisions in the next section, as follows: 1. From a particular malice to the person killed; 2. From a particular malice to one, which falls by mistake or accident on another; 3. From a general malice or depraved inclination to mischief, fall'where it may. Now, as this third subdivision is obviously a specification of the nature of the cases falling within the last clause of the previous general division, it is entirely clear that it was intended to describe a class of cases in whicn a deadly intent is not required to make out the crime.

It has been already intimated that the first subdivision of § 5 of our statute appears to be a virtual transcript of the first two subdivisions just given from East. . It is, I think, equally apparent that the second subdivision in our statute was taken substantially from the third subdivision of East, although not a literal transcript of it. The inference from this is very strong that it was intended to describe the same class of cases; and if so, then it follows from what has already been said, that a deadly intent is not necessary to constitute the crime of murder under it.

But there is an important clause added to the second subdivision in our statute, which does not appear at all in East; and it becomes indispensable to ascertain its design and object. If we can discover the true object of introducing this clause, we have a key to the interpretation of the whole section. The words are: “ although without any premeditated design to effect the death of any particular individual.” These words must have been introduced for some purposé; what was it ?

I remark first, that they were not designed to show that a particular deadly intent is not essential to constitute the crime, because they could not have been deemed at all necessary for that purpose. The idea of such a necessity seems, as we have already shown, to be excluded by the whole phraseology of the subdivision. No corresponding language is contained in East’s definition of this class of murders. He evidently considered the definition complete and perfect without it. Besides, if this clause was introduced for that purpose, the plain implication would be that a general deadly intent, not aimed at any particular individual, is necessary. This would be repugnant to all our previous reasoning,. and would exclude from the operation of the subdivision the very cases which at common law marked the class. This view of the clause would also effectually exclude the case at bar from the subdivision. But I consider it clear, from what has been heretofore said, that this could not have been the object of the clause.

There is but one other purpose which this clause could have been intended to subserve. Although the terms of the second subdivision do not require a deadly intent to make out the crime, yet, independent of the clause in question, they do not exclude it. Hence the second- subdivision • might be construed to embrace most if not all the cases provided for in the first. This would defeat the very object of the classification, which was to draw a clear line of distinction between the different classes, and prevent confusion by their merger.

The plain object, therefore, of the last clause of the second subdivision, and the only conceivable object, I hold to have been to mark the distinction between that subdivision and the first, by at once excluding from the former all cases of particular, and at the same time stateing that it was not intended to exclude cases of general deadly intent.

Assuming this to have been its object, it is apparent that force and significancy is given to every word of the clause in question-; and that each of these subdivisions is made to ( stand out, isolated and distinct, with boundaries clearly j marked, and with no tendency to fusion with each other. 1 It will be seen that this view necessarily limits the first. subdivision to cases of particular malice, from the antithetical relation between that subdivision and the last clause of the» second. This will be made more apparent by reading the» two clauses in connection, omitting the intermediate significant words, thus : “ when perpetrated from a premeditated! design to effect the death of the person killed, or of any human being, or when perpetrated” [in a certain way],! “ although without any premeditated design to effect the death ( of any particular individual.”

I do.ubt whether any other reading can be adopted, which will at once give scope and meaning to every word of both subdivisions, and at the same time accomplish the object of drawing a definite and clear line of demarcation between the two. We have then the precise classification of East; the only difference being, that in our statute it is simplified by reducing the first two subdivisions into one, and rendered a little more definite by the express exclusion from the last subdivision of all cases embraced in the first.

What then are the cases which, upon this construction, were intended to be included' in the second subdivision ? In considering this question, it is clearly proper in the first place to inquire what kind of cases were embraced in the corresponding class as defined by East.

The words in East are : “ From a general malice, or depraved inclination to mischief, fall where it may." The word “general” here used, and the last words of the sentence, leave no doubt as to the nature of the cases contemplated by this subdivision. They were, cases of depraved and reckless conduct, aimed at no one in particular, but endangering indiscriminately the lives of many, and resulting in the death of one or more.

If this be not clear upon the words themselves, the comments of Mr. East upon" this subdivision would seem to put the matter at rest. (1 East’s P. C., 231, § 18.) In illustrating this subdivision, he says: “ The act_must.be unlawful, attended with probable serious danger, and must be done with a mischievous intent to hurt people, in order to make •the killing amount to murder in these cases;” and the •instances he gives are as follows: “If a person .breaking in an unruly horse wilfully ride among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal, it is-murder.” Again, “ So- if a man, knowing that people are passing along the street, throw a stone likely to create danger, or shoot over \the house or wall, with intent to do hurt to people, and one is thereby slain, it is murder.” These are the only examples given, and they accord perfectly with the language of the subdivision, and show that the latter was intended to embrace those cases of general malice only, where the lives of many were or might be in jeopardy. The inference is very strong that the subdivision of our statute which we are considering was intended to provide for the same cases as that of East, from which it was substantially taken. But the argument in favor of this construction is by no means confined to this inference.

It is clear, I think, from what has been already said, that the subdivision in question does embrace those cases where an intent to take life exists, which is not directed to any particular individual, but is general and indiscriminate. The language of the subdivision, however, at the same time shows that it was not intended to be confined to those cases, but was designed to include another class, closely akin to and almost identical with those, in which death is produced by acts putting the lives of mamj in jeopardy, under circumstances evincing great depravity and utter recklessness in regard to human life. For instance, a man may fire into a crowd with the view of destroying life, and he may do so for the mere purpose of producing alarm, although at the imminent hazard, as he knows, of killing some one. Again, he may open the drawbridge of a railroad with intent to destroy the lives of the passengers, or he may do it for the sole purpose of effecting the destruction of the property of the railroad company. The subdivision in question was intended to provide for all these and similar cases indiscriminately, putting them upon the same footing, without" regard to the particular intent. The phrases “ imminently dangerous to others,” and “ depraved mind, regardless of human life,” have an apt and intelligible meaning when used in regard to such cases.

If then the subdivision was intended to include cases of this description, it would seem to follow, upon the plainest principles of construction, that cases of death produced by acts affecting a single individual only are excluded. It would be repugnant to all sound rules of interpretation to associate under the same clause of a statute groups of cases so dissimilar as those, examples of which I have just given, and ordinary homicides; especially where, as in the present instance, an attempt has been made in framing the statute at a precise classification of the cases arising under it.

The examples which I have given as falling within the provision belong to a class having marked features easily distinguishable from all others; and there is no difficulty in so construing the subdivision in question as to exclude cases not belonging to this class, and at the same time so as to include all cases • falling properly within it. For these reasons I am entirely satisfied that this subdivision was designed to provide for that class of cases, and no others, where the acts resulting in death are calculated' to put the lives of many persons in jeopardy without being aimed at any one in particular, and are perpetrated with a full consciousness of the probable consequences. Such acts may well be said to evince that reckless disregard of and indifference to human life, which is fully equivalent to a direct design to destroy it. The moral sense of mankind distinguishes between acts of this sweeping and widely dangerous character and ordinary cases of individual homicide, and so in my judgment does the statute,

But there is an additional reason for putting this construction upon the subdivision in question. If it can be so construed as to include the case at bar, and others of a similar description, we are left wholly without any line of -distinction between murder and manslaughter, except the loose and uncertain opinion of a jury as to whether the act which produced death did or did not evince a “ depraved mind, regardless of human life.” There is scarcely a case of manslaughter which upon this construction may not be brought within the definition of murder, and punished as such, provided a jury can be found to say that the act which produced death evinced a “ depraved mind, regardless of human life;” because the other clause, to wit, “imminently dangerous to others,” if it can apply to this would apply to every cáse of homicide, as the result would always prove the imminently dangerous nature of the act; and because upon this construction cases of homicide committed unintentionally, in the heat of passion, would not be excluded, as such a case might very well evince a depraved mind, regardless of human life, in the opinion of a jury. This construction then would throw us upon that sea of uncertainty which it was the special object of the revisors in framing, and of the legislature in adopting the section in question, to avoid. .

My conclusion therefore is, that the only construction which is consistent with the language of the section as a whole, with the object aimed at in its adoption, with the precision and certainty of the law, and with the convenient and safe administration of justice, is that which I have already given.

I omit to express any opinion as to the particular degree of manslaughter within which this case is embraced, it being unnecessary to the decision of the cause. The question was somewhat agitated upon the argument, but ought perhaps to be more fully discussed and more deliberately considered before it is definitively settled.

It follows from what has been said, j hat the judge erred upon the trial in submitting the case to the jury under the second subdivision of the section of the statute in question, and consequently that there must be a new trial.

Denio, J.

The offence of murder, though the most heinous crime which can be committed against an individual, had not, either in England or in this state, been subjected to a legislative definition, until it was done in the enactment of the Revised Statutes in the year 1830. By the ancient common law, the distinction in felonious homicide between a killing with or without malice was merely nominal, both being indiscriminately punished with death. It was said that although the malice made the fact more odious, yet it was nothing more than the manner of the fact, and not the substance; and the term manslaughter was used to define the offence in both cases. But when the benefit of clergy was, by statute, taken away from murderers with malice prepense, the more modern distinction between that most aggravated form of homicide and the inferior grades came to be recognized, so that, at the period when we succeeded to the English common law, the legal definition of murder was well established. (4 Reeves’ Hist. Eng. Law, 393, 534 to 536; 5 id., 220 to 223; Foster’s Grown Law, 302 to 306; 4 Bl. Com., 201.) The act concerning murder in the revision of 1813 did not attempt a definition of the offence, but was limited to the reenactment of several English statutes providing for a few particular cases of homicide, bringing them within or exempting them from the penalties of murder. (1 R. L., 66.) The description of the offence, then, which had prevailed for several centuries prior to 1830, was this: “ Where a man of sound memory and of- the age of discretion unlawfully killeth any reasonable creature with malice prepense {or aforethought.)" (Coke's 3d Inst., 47; 1 Hale's P. C., 449, 450; 4 Bl. Com,., 195.) The words malice prepense acquired a peculiar significance on account of their use in the statute 23 Henry VIII., ch. 1. That act provided that if any not actually in holy orders should be found guilty (among other crimes) of “ any wilful murder of malice prepensed," they should be utterly excluded from the benefit of their clergy, and suffer death in such manner and form “ as if they were no clerks.” From that time the words referred to became indispensable in the definition of the offence, as only a nominal punishment could be inflicted if malice were not established by the verdict; and from thence, also, the inferior grades of felonious homicide came to be called manslaughter, while the capital offence was denominated murder. And where a capital conviction was sought, it was said to be indispensable that the indictment should contain the words “ ex malitia sua prmcogitata interfecit et murdramt." (1 Hale P. C., 450.) Though the words in their ordinary' sense conveyed the idea of deadly animosity- against the deceased, and by a strict interpretation would, perhaps, only embrace cases of a killing from motives of revenge, they were not so limited by the construction of the courts. All homicides, for which no excuse or palliation was proved, and a large class where there was no actual intention to effect the death of the person killed, were held to be murder. To justify these convictions an artificial meaning was attached to the words malice prepense, by which they were made to qualify the taking of human life in all cases where sound policy or the demerits of the offender were supposed to require that he should be capitally convicted. Hence, the definitions of murder to which I have referred contain the addition that the malice may be express or implied. But in drawing the distinction between the two classes, great confusion was introduced. Coke, for instance, classes among instances of implied malice, the case of poisoning, and all cases of the killing of another without any provocation in him that is slain ; though it would seem that a wilful poisoning afforded the strongest evidence of deliberate malice, while in the other case, supposing no explanatory evidence to be given, actual malice ought to be found as a matter of fact-upon the evidence. (3 Inst., 52.) Hale includes in the class of malice in fact, the case of killing from a deliberate compassing and design to do some bodily injury, and instances Ilalloway’s case, where the prisoner tied a lad, who was found trespassing, to his horse’s tail, and he was dragged till his shoulder was broken, whereof he died. (1 Hale P. C., 451,454; Holloway's case, Cro. Car., 131.) So, he says, if a master designeth an immoderate and unreasonable correction of his servant, either in respect to the measure or the instrument, and death • ensues, it is murder from express malice; and so of a school-master toward his scholar. (P. 454.) This author, in his chapter of “ murder by malice implied or malice in law,” includes in that class cases where the homicide is committed without provocation, where it is upon an officer or minister of justice, and where by a person that intends theft or burglary, &c. In the first division (murder without provocation), the cases present merely a rule of evidence. As the law holds that a man intends the natural consequences of his own acts, it determines that where there is no provocation, or where there has been time for the blood to cool, the killing must be designed and intentional. As was said by Coleridge, J., in Regina v. Kirkliam (8 Carr. & Payne, 115), “Every one must be presumed to intend the natural consequence of his acts. If you throw a stone at a window, it must be taken that you intend to break it, because it is a brittle substance. That being so, if you had heard nothing more than simply that the prisoner, taking a knife in his hand, had stabbed his son, that would have put it on him to clear himself from the charge of murder.” In cases of this kind, if the prisoner could show positively that his intention was not to kill the deceased, he would, of course, be acquitted. In the other instances, on account of the intention to do some other illegal act not touching life, the presumption is juris et de jure, and the most conclusive evidence that death was not intended would not help the prisoner. Take, for example,. the case of a homicide by one engaged in committing a * burglary. The party killed may have been a stranger, or even the nearest friend of the prisoner, and he may be able to show in the most conclusive manner that lucre was his only object, and that murder was not in all his thoughts; still, he was, by law, guilty of murder with malice aforethought.

These references are sufficient to show that the term malice prepense had been made the subject of much, and not always perfectly intelligible refinement. Malice in law, or implied malice, was sometimes simply a conclusion from the facts, and liable to be overcome by the proof of other facts, and at other times it was an irresistable legal inference which could not be rebutted. So far from being a descriptive term to be applied as a test to cases as they should arise, it had become simply a part of the name to be given to the offence when its existence had been ascertained by other tests. It was probably for this reason that the expression was wholly omitted in the revised code. The object of "the revisors and of the legislature was to define the offence by the use of language in its ordinary sense, omitting a phrase which, though it had become technical, tended to mislead rather than to instruct. The provision respecting murder, as proposed by the revisors, was as follows:

“ § 4. The killing of a human being without the authority of law, by poison, shooting, stabbing, or any other means, or in any other manner, is either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case.

“ § 5. Such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases: 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being; 2. When perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; 3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony; 4. When perpetrated from a premeditated design to do \ some great bodily injury, although without a design to effect death..” (3 R. 8., 2d ed., 808.)

The legislature was at the same time informed by the revisors that a lamentable uncertainty prevailed in regard to the distinction between murder and manslaughter, that nothing was so much needed as a settled line of distinction between them, and that the first step to such a distinction was the definition of murder. (Id.)

These provisions were enacted precisely as reported, except the fourth subdivision of the 5th section, which was rejected. (2 R. S., 656.) It thenceforward became the duty of the courts, by an attentive consideration of the language of these enactments, to ascertain in each case presented for adjudication whether the alleged offence came within the statute. The case of the plaintiff in error would have been of easy solution as the law stood before the. revision. The deceased died by his hands, and the bill of exceptions states that there was no evidence given to show any provocation on her part. It was a homicide wholly unexplained. It was also a case of cruel and inhuman violence, unrelieved by provocation or the heat of passion, and of a design to do some great bodily harm, from which death resulted, possibly without its being contemplated by the accused. In either case, as a homicide unexplained, or a killing by cruel violence unprovoked, it was murder by the common law. Whether, under the statute, the jury would have been authorized to find a premeditated design to effect her death, within the meaning of the first subdivision of the fifth section, is a question not before us, and upon which it would be improper to express an opinion. That question was not presented to the jury. The precise question"'is" whether-the—second- subdivision embraces the case of killing by an unprovoked-and cruel beating, the accused not. intending-to- take life. Had the fourth subdivision, as reported, been enacted, it would precisely have met the case. I do not rely very much upon its having been reported and rejected by the legislature. It may have been because they did not intend to punish such a case as murder, and it may have been because it was considered as embraced in the prior provisions. It is, however, a circumstance of some moment, as it would rather be presumed that where a case of frequent occurrence was well described in the projected law, the provision would have been adopted, instead of leaving it to be dealt with by a construction upon other provisions less accurately adapted to the case. This consideration is strengthened by the circumstance that a homicide committed in the attempt to do a great bodily injury short of death, without or on insufficient provocation, formed a distinct head of the law of murder by the common law. (See, in addition to the books referred to, Foster's Crown Law, 262, 291, 296; 4 Bl. Com., 199; Rex v. Reason, 1 Stra., 500; Arch. Cr. Pl., 394.) In ascertaining the meaning of the second subdivision, upon which the plaintiff in error was convicted, it is necessary to look into other instances of murder at the common law, where it is not necessary that there should be any intention to take the life of the person killed. I refer to cases where death was the collateral consequence of the act, which itself was highly criminal. Foster says, that “if an act unlawful in itself be done deliberately and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately, full it where it may, and death ensue agámstWbeside the original intention, of the party, it will be murder.” (P.261.) One branch of the offence here referred to is, in a modified form, provided for in the first subdivision. A premeditated design to effect the death of “any human being” is made murder, though the person killed was not at all within the intention of the offender. (See The Queen v. Saunders, Plowd., 473.) Then as to the intent to do mischief indiscriminately, by which is meant such as is deadly or very dangerous: almost every writer on criminal law has a division of murder from general malice or a depraved inclination to mischief, fall where it may. (1 East’s P. C., 231; Hale, 476; 4 Bl. Com., 200; 1 Hawk., ch. 29, § 12, and ch. 31, § 61.) The act must be itself unlawful, attended with probable serious danger, and must be done with a malicious intent to hurt people. (East, supra.) The instances given are, riding an unruly horse among a crowd of people, the probable danger being great and apparent; throwing a heavy stone into the street when multitudes are passing; firing a gun into a crowd, and the like. No one will deny but that the second subdivision of the 5th section very accurately describes the particular instance of murder just referred to; but the question is whether it is not limited to that, and whether it fairly extends to cases where the intention and the act refer only to the person killed; where the evil intention, whether more or less wicked," has for its object the party who ultimately becomes the victim. The language does not seem to me designed to embrace the last mentioned case. In the first place, the act causing death must be one imminently dangerous to others. Why should the greater or less degree of danger be an ingredient, when the case supposes that the party against whom it was directed and for whom it was intended was killed by it ? It must be dangerous to others. The plural form is used; and though I am aware that by a general provision of the Revised Statutes the plural may be construed to include the singular, I conceive that where a precise definition was intended, and where the distinction between general and particular malice must have been in the mind of the legislature, the case of imminent danger to the person killed would have been specified had it been intended to embrace it. (2 R. S., 778.) The actum st evince a depr^ed^mmd.~^-ggffiiri¿eM. of Jmman life. -These words are exactly dessnpjive-of--gexim^l-malicer-and^annot be fairly appliecljo any a.fFectioTTTrUUumriiiid having for its object a particulm-mdividual. They define general recklessngsspand are not pertinent to describer-ern^Sty-tajm individual. The act by which the deatlTis effected must evince a disregard to human life. Now, a brutal assault upon an individual mav evkme-ammQsjfy-and Jhate towards that persnm_and a cruel and revengeful ¿Imposition, but it could not properly be said to Tleevidenceof a recklessness and disregard of humanTife generally». Take the case of death ensuing from an intentional immoderate punishment of a servant. The act would be evidence of a disregard of the life of the servant, but not of human life in a general sense. The life of every one, we know, is a human life; but the words are used in this enactment in a general sense, as clearly as when we speak of the uncertainty of human life, or the miseries, the pleasures, or the vanity of human life. Again, the killing must be without any premeditated design to effect the death of any particular individual. Why did not the legislature say, of the person killed ? or, if it were intended to embrace both general and particular malice, of the person killed, or of any particular individual ? The first subdivision presented an example, in immediate proximity, of the phraseology suggested, where it was intended to provide as well for the case of particular malice effecting its object as for malice taking effect in a manner collateral to the intention. Upon the most careful and anxious examination of the provision, I am entirely satisfied that it cannot, without violence to the intention of the legislature as evinced by the language, be applied to the case of homicide resulting from a direct assault by one person upon another.

It is not necessary to maintain that homicide from a cruel assault, without a design to effect death, could be adequately punished under the provisions respecting manslaughter. It may be that the failure to enact the provision in the revisors’ report rendered a change necessary in the enactment respect ing manslaughter, which was omitted through inadvertence. If so, it is a casus omissus which the legislature is alone competent to supply.

I have not overlooked the opinions incidentally expressed by Chancellor Walworth and Mr. Justice Bronson, in The People v. White (24 Wend., 520) and in The People v. Rector (19 Wend., 569). In neither of these cases was this question presented; and in both of their opinions, those learned judges were dissentients from the judgment of the court upon the points decided in those cases.

The judgments of the courts below should be reversed, and a new trial ordered in the court of oyer and_terminer.

Parker, J.

As it appeared that the injuries upon the head of the deceased had no part in causing her death, we may lay them entirely out of view in considering this case. The whole case, then, is this. The prisoner made three several assaults upon the deceased, and beat her with his fists in the pit of the stomach, which caused her death. The fact that the prisoner had threatened to kill the deceased certainly made the case a proper one in which to submit to the jury the question, under the first subdivision of the definition of murder, whether the act was done from a premeditated design to effect death. But the judge charged that the prisoner might be convicted under the second subdivision of the definition of murder, which applies to a killing “ perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any particular individual.”

I think that subdivision was designed to cover a very different class of cases; such as where death is caused by firing a loaded gun into a crowd, by poisoning a well from which people are accustomed to draw water, or by opening the draw of a bridge just as a train of cars is about to pass over it. In such and like cases, the imminently dangerous act, the extreme depravity of mind, and the regardlessness of human life, properly place the crime upon the same level as the taking of life by premeditated design. But these expressions are not applicable, and cannot be made so, to a mere case of the commission of a battery with the fists, without a design to effect death, but from which death ensues. In this opinion I concur with Senator Wager, in The People v. White (24 Wend., 583), and with Justice Cower, in The People v. Rector (19 Wend., 591), and differ from other judges who expressed different opinions in those cases, as well as from the dicta in The People v. Enoch (13 Wend., 159). If the judge was right in his charge in this case, there is no security against a conviction for murder in every case where a person intends merely to beat with his fists, and accidentally causes death, and in every other case of manslaughter caused by personal violence, because the accused could hardly deny that the act was imminently dangerous, when it proved so by causing death; and every beating with the fist evinces a certain depravity of mind, because there is a design, to do wrong to the extent, at least, of committing a misdemeanor, and to some extent there may be considered a regardlessness of human life in such case, because such a beating might cause death. If such a construction is admissible, the absurdity is jmesented of putting the offence of killing without design by a person engaged in the commission of a misdemeanor, on the same level with a killing without design by a person engaged in the commission of a felony, and punishing both with death; thus restoring the law as it stood before the adoption of the Revised Statutes, when it is the plainly expressed intention of the revision to mitigate the former offence by reducing it to manslaughter.

A careful examination of the section defining murder and the sections defining manslaughter will show, I think, very clearly, the erroneousness of the charge in this respect. The section defining murder declares, “ such killing, unless it be manslaughter,” &c., “shall be murder in the following cases.” This qualification is made applicable to each of the three following subdivisions. If it is not manslaughter, it is murder “ when perpetrated by any act imminently dangerous to others,” &e. If it is manslaughter, that is, if the facts proved bring the case within either of the descriptions of manslaughter, it can in no case be murder. Now in the case before us, if there was no premeditated design to take life, so as to bring it within the first subdivision, and it was upon that supposition that the charge was made, the case falls precisely within the definition of manslaughter in the first degree. It was the killing of a human being, without a design to effect death, by the act of a person engaged in the perpetration of a crime or misdemeanor not amounting to a felony, in a case where such killing would have been murder at the common law; and being within the description of manslaughter it could not be murder. To be murder, a case must not only fall within one of the three subdivisions defining murder, but it must not fall within any of the definitions of manslaughter. If full effect be thus given to the words “ unless it be manslaughter,” in the preliminary part of the section defining murder, the second subdivision of that section will only be applicable to the class of cases above indicated. All others growing out of personal rencontres, and confined generally to two persons only, will be found to fall within some of the definitions of manslaughter, and, of course, without the second definition of murder.

With this construction, crimes will also be properly graduated according to the " intention of the revisors. If A attempts to cowhide B for having libeled him, and death accidentally ensues, the crime will be manslaughter in the first degree, because the assailant was engaged in committing an assault and battery only. But if A attempts to cut off the hand that wrote' the libel, and death accidentally follow, the crime will be murder, because A was engaged in the commission of the felony of mayhem.

It is evident that the presiding judge, in charging the jury, had in his mind the idea that the case, to be murder, must not fall within the definition of manslaughter, for he made it a condition to bringing the case within the latter that the jury should find the injuries “ were inflicted without provocation and not in the heat of passion.” But he overlooked the definition of manslaughter that was alone applicable. He should have specially called their attention to the definition of manslaughter in the first degree, and if he alluded to the second subdivision of the definition of murder at all, he should have told them it could not fall within that, if it was a case of killing without a design to effect death while pngaged in committing an assault and batteiy only. If there was a design to effect death, it would of course have fallen under the first subdivision of the definition of murder. If there was any question on that point, it should have been submitted to the jury to find whether it was murder under the first subdivision, or manslaughter in the first degree. .

If this case was properly submitted to the jury as falling under the second subdivision of murder, so might a case be thus submitted where death was caused without design by a person engaged in a felonious assault upon the person killed, which is one of the cases expressly provided for in the third subdivision. But the construction I have put on the second subdivision confines each subdivision to a distinct class of cases, and renders it entirely inapplicable to any other.

But it has been said (People v. Rector, 19 Wend., 608) that the 6th section of the statute defining manslaughter in the first degree is not applicable to a case where the party causing death without design is engaged in an assault and battery. I find no warrant for such a position. No exception of that offence is made in the statute. The language is, “ the killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of any other, while such other is engaged: 1. In the perpetration of any crime of misdemeanor not amounting to a felony; or, 2. In an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be manslaughter in the first degree.” This section is thus made expressly applicable to all crimes and misdemeanors not amounting to felony, and it is certain an assault and battery is one. The statute nowhere confines this section and the third subdivision of the section defining murder to other offences than those of intentional violence.

It is said that this plain construction of the act would make every case murder, because being engaged in an assault, and death ensuing, it becomes the felony of manslaughter, and being engaged in such felony, and death ensuing, it is murder. But it leads legitimately to no such result. The intent regulates the crime, unless otherwise provided. If the party intends an assault and battery, and death ensues without design, he is guilty of manslaughter. If he intends a mayhem or other felony to the person, and death ensues without design, it is murder. The law makes a person responsible for consequences not designed, in proportion to the grade of offence designed. This construction supposes an attempt, coolly and deliberately made, to commit a battery, and the offence of unintentionally causing death in such a case is the first degree of manslaughter. If there is the excuse that the act was done in the heat of passion, though in a cruel or unusual manner or with a dangerous weapon, it is mitigated by the 10th and 13th sections to manslaughter in the second degree; and if done in the heat of passion, but not in a cruel or unusual manner, and not with a dangerous weapon, it is reduced by the 18th section to the fourth degree.

It may be that these respective crimes are not properly graduated, or punished in proportion to the moral delinquency ; but the disproportion would be much greater if we held that death ensuing without design from the commission of a battery is not manslaughter in the first degree, within the description of the 6th section. With such a construction, and with a construction of the second subdivision of the definition of murder like that adopted at the trial, the question for the jury would not be whether the crime was murder or manslaughter in the first degree, but it would be whether it was murder or manslaughter in one of the lower degrees, thus making a leap from murder to man-, slaughter in the fourth degree; from a crime punishable with death, to one punishable in a county jail, with but a shade of difference between them. The very case before us falls at once to manslaughter in the fourth degree, if excluded by such a construction from the first degree.

It is objected that, if my construction of the first degree of manslaughter is correct, it would cover every other degree of manslaughter, for in every case provided for in the lower degrees there is also an assault and battery, and death ensues. I answer, the general description in the first degree cannot be considered as applicable to cases particularly described in the lower degrees. The first degree gives the general description; the lower degrees the exceptions, as where the act is done in the heat of passion, &c. It is far more consistent to hold that the description in the first degree does not apply to cases described in the second and third degrees, than to hold it is not applicable to any case of assault and battery where death ensues. There is much less violence done to the language of the section by my construction than by that against which I contend. There is reason in holding that the first section, being in general terms, is not applicable to cases specially described. Though within the general language, it may well be supposed the legislature did not intend to include them, because they are provided for specially in other sections. But it seems to me it is refusing obedience to the statute, to say that it is not intended to be applied to any case of assault and battery, when no exception of that offence is made.

But whatever may be the true construction of the 6th •section, defining manslaughter in the first degree, I am clearly of the opinion that the court below erred in attempting to bring the case within the second subdivision of the section defining murder. The offence was either murder by design, under the first subdivision, or manslaughter in some degree.

If I were sitting in the oyer and terminer, and perhaps if sitting in the supreme court, I should feel bound by the opinions expressed on these points by the learned judges who constituted a majority of the court in deciding the Rector case. But in this court, where this question has not been decided, and where we are bound by no such opinions expressed in an inferior tribunal, I think it is our duty to settle the construction of these sections of the statute, by giving to them the effect which must have been originally intended, and thereby placing the different statutory provisions more in harmony with each other.

My conclusion is, therefore, that the court of oyer and terminer erred in its charge to the jury, and that the judgment of that court and of the supreme court should be reversed.

Edwards, Allen and Johnson, Js., concurred.

Gardiner, Ch. J., and Ruggles, J., dissented.

Conviction reversed and new trial ordered,