State v. Hoyt

13 Minn. 132

• Court: Supreme Court of Minnesota
• Decided: January 15, 1868
• Status: Published

Opinion

By the Court

Berry, J.—

I. —The defendant was indicted by a. grand jury of Rice County for murder. Upon being brought into Court and arraigned, his counsel moved to set aside the indictment upon the ground “ that he was confined in jail at the time that the grand jury- were impanneled, sworn and engaged in finding the said indictment, and had no opportunity to challenge the panel of the' grand jury, or any individual grand juror.” The denial of this motion is the first alleged error. The case shows that no attempt was made to interpose a challenge, and, although the fact may not be important, that the defendant’s counsel were in Court at the time when the grand -jury were impanneled and sworn.. It does not -appear that any cause of challenge existed.

The point raised has already been settled adversely to the views of the defendant’s counsel in Maher vs. State, 3 Minn., 445, and in State vs. Hinckley, 4 Minn., 363-4, and we see no reason for re-examining it. See also People vs. Jewett, 3 Wend., 313.

II. - — -Mrs. Stamford, the wife of deceased, testified before the State rested, “ that when defendant came to her house on the morning of and after the homicide, he said to her that he had killed Mi'- Stamford, and was. going to kill her.” The attorney for the State then asked the witness the following question: “ What did the defendant do then ? ”

The counsel for the defendant objected. The objection being overruled, defendant excepting, the witness answered : “ He raised liis axe to strike me, and kept striking at me, and threw me upon the floor, but I caught hold of the axe and held to it until the boys came. He kept grinding his teeth and saying ‘ God damn you.’ ” ■ This testimony was improperly admitted. The transaction testified to took place some time after and at a distance of a half mile or more from the scene of the homicide. . The testimony had no tendency to establish the charge contained .in the indictment, and its natural effect was to prejudice the jury against the defendant. State vs. Hoberg, 3 Minn., 262; People vs. Thurston, 2 Park. Cr. R., 130; Roscoe Cr. Ev., 81.

III. —The counsel for defendant contend that, the Court erred in permitting the State to prove wounds not mentioned in the indictment, wounds which might have been mortal, and which the jury may have inferred were made by the defendant, and were the cause of, Stamford’s death.

There is nothing in this point. “ It is sufficient if the proof agree with the allegation ú¡v its substance and generic character, without precise conformity in every particular.” 3 Gr. Ev., Sec. 140; 1 Ibid, Sec. 65 ; Sanchez vs. People, 22 N. Y., 149 ; 1 Russell on Crimes, 560; Roscoe Cr. Ev., 108; 1 Archbold Pr. and Pl., 7th Ed., 888; 4 Parker’s Cr. R. 552; Rex vs. Waters, 7 C. and P., 250; 2 Bishop Cr. Pro., Sec. 528.

IV. - — -The defendant claims that the Court erred in permitting Maria Hoot to testify to statements made by' the witness Emma Hoyt, contradicting her testimony upon the stand, because a proper foundation had not been laid, by first calling the attention of Emma Hoyt to any conversations with Maria Root occurring at the times and places at which Maria Hoot testified that such statements were made.

It appears from the ease that upon an examination by the State a question was addressed to Emma Hoyt “ concerning alleged conversations with Mrs. Maria Root.” "What the language of the question was, we are ' not informed, and therefore we are not able to determine whether the requisite foundation referred to was laid or not. It does not, then, appear that there was error. ■ To lay the proper foundation, “ it is generally held necessary, in the ease of verbal statements, first to ask as to the time, place and person involved in the supposed contradiction.” 1 Or. Ev., Sec. 462.

The precise date, however, need not be indicated. Pendelton vs. Empire Stone Dressing Co., 19 N. Y., 18. The object is, in justice to the witness proposed to be contradicted, as well as in justice to the party calling him, to point out the occasion referred to, with such reasonable certainty as to recall it to the mind of the witness, so that he may have an opportunity to correct his statement on the stand, or explain what he may be proved to have said elsewhere. See authorities svpra. 1 Starkie Ev., 213-14; State vs. Starr, 38 Mo., 279.

Y. — The counsel for the defendant asked the Court to instruct the jury “ that if they found that the defendant killed the deceased while resisting an attempt by deceased to commit any trespass upon the lands and cattle of the defendant, or to clo any unlawful act whatever, or after such attempt had failed, and that such killing was unnecessary, they must find the defendant guilty óf manslaughter in the second degree.”

The counsel for defendant also requested the Court to charge “ that according to the laws of this State cattle have a right to run at large from the first day of April to the fifteenth day of October, in each year, and that any assault or trespass with force and violence .on such cattle at such time by driving or running, or worrying and beating them'in the highway, is an unlawful act.”

The counsel for the defendant also requested the Court to charge, “ that the driving of one man’s cattle, by another out of the highway or along the highway where they have lawfully a right to be and remain, violently, and with force, is an unlawful act, and if the jury find that the defendant hilled the deceased while resisting an attempt by the deceased to do such an unlawful act, and that such hilling was- unnecessary, they cannot convict the defendant of murder in the first degree, but of manslaughter in the second degree.” Each of these requests was refused by the Court, and defendant excepted.

It is claimed that the instructions ashed for were proper under See. 13, page 598, Gen. Stat., which reads as fohows: “ Whoever unnecessarily hills another, except by accident or misfortune, and except in cases mentioned in sub-division two of section five of this chapter, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, shall be guilty of manslaughter in the second degree.”

The evidence in this case tends to show that here was a hilling with an axe — a deadly weapon — by inflicting therewith blows upon the head and nech of the deceased. These blows are claimed to have been inflicted in resistance of a civil trespass upon the land or cattle or both of the defendant; and there is no pretense that the weapon was used without a design to effect the fatal result which followed .'its use, to wit: the death of Stamford. We are unanimously of opinion that to such a state of facts See. 13 has no application, and that the instructions before quoted were therefore properly refused. But after a very laborious and protracted examination of the points involved, we are compelled to.arrive at this conclusion by courses of reasoning in which we are not .unanimous ; we therefore forbear to enter upon an explanation of the grounds upon which we base our judgment; it is sufficient for all the practical purposes of this case to announce the result reached. In considering and expounding the law of homicide we desire to act with extreme caution, and if possible to lay down no position and adopt no line of. argument in which we cannot unanimously concur.

YI. — It must be borne in mind that in this construction of See. 13 we are not considering the case of a killing in heat of passion, upon sudden provocation, or in sudden combat, under See. 12, to which we now come.

The Court charged the jury “ that if they found that the homicide was committed in a heat of passion, upon sudden provocation, or in sudden combat, they must then take into consideration the character of the weapon used by defendant,* and if a deadly weapon was used, the .provocation given the defendant must have been great indeed to reduce the killing from murder in the first degree to manslaughter in the second degree. It is a question for the jury to find whether in this case there was sufficient provocation to reduce the crime from murder to manslaughter in the second degree.” To this the defendant excepted.

"What is a sufficient provocation is quite commonly spoken of by writers on criminal jurisprudence, as a question of law, not of fact, a question for the Court, not for the jury. But as Mr. Bishop remarks in 2 Or. Law, See. 735, in speaking of the question of what is a sufficient provocation and what is sufficient cooling time, “ they are found practically involved in inquiries concerning facts, and as such they must be passed upon by the jury.” Ye are very well satisfied in general with the views expressed on this subject in Maher vs. The People, 10 Mich., 212. In that case Mr. Justice Christiancy says: “It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable0 or adequate provocation, but not, I think, in ordinary cases to determine whether the provocation proved in the particular ease is sufficient or reasonable. This i's essentially a question of fact, and to be. decided with reference to. the peculiar facts of each particular case. As a general rule, the Court, after .informing the jury to what extent the passions must be aroused, and reason obscured, to render the homicide manslaughter, should inform; them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men ; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in rny opinion, much better qualified to judge of the sufficiency and tendency of á given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.” • And again says the same Judge: “The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule — that reason should, at the time of the act, be 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. To the question what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, ■committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be anything, the natural tendency of which, would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them ; not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes ; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for -then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation, which would not be available to better men, and on .account of that very wickedness of heart, which in itself constitutes an aggravation in morals and in law. In determining whether the provocation is sufficient or reasonable, ordmary huma/n nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard.”

"We agree substantially with the views thus expressed by the Supreme Court of Michigan. It is the province of the Court to define what will constitute a provocation, by, in substance, informing the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render the average of men of fair average mind and disposition liable to act rashly or withoxit due deliberation or reflection, and from passion, rather than judgment, and something which the jury are satisfied did so disturb and obscure the reason of the defendant in the case before them, so that the homicide was the result of the provocation:

The average of men of fair average mind and disposition should be taken as the standard. It is for the jury under in-’ structions of this general nature to determine whether the provocation-proved in the particular case on trial is sufficient. We do not mean to say that it is' not proper for a Court to elaborate and illustrate the general instructions above indicated. That is a matter which calls for the exercise of a sound practical discretion, as circumstances may require, for the purpose of bringing the law clearly to the comprehension of the jury-

VIL — So far as the instruction related to a heat of passion upon sudden provocation, it is in accordance with the following views heretofore' expressed by this Court in State vs. Shippey, 10 Minn., 229-230, to which we adhere. In that case it was said “ that to determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected, must be taken into consideration, for if it was effected with a deadly weapon, the provocation must be great, indeed, ■to lower the grade of the crime from murder.”

And the reason why this is so is, because the presumption from the bare fact of the use of a deadly weapon in perpetrating homicide in heat of passion upon sudden provocation or in sudden combat, is that the killing was intentional, and where the killing is intentional, a great provocation is required to disturb or obscure reason “ by passion to an extent which might render ordinary men of fair average disposition liable to act rashly or without due deliberation or reflection, or from passion rather than judgment.” And so whenever it is sought to bring a case within the terms and meaning of Section 12 the provocation must be great to give the homicide the character of manslaughter, because only intentional killing is covered by that section which reads in this wise : “ The killing of a human being by another, in a heat of passion, upon sudden provocation, or in sudden combat, intentionally, but without premeditation, is manslaughter in the second degree.”

VIII. — It is proper further to observe that, as remarked in State vs. Brown, 12 Minn., 543, “ ‘intentionally, and ‘with premeditated design,’ do not seem to be used in our statute as synonymous expressions; the latter involving a greater degree of deliberation and forethought than the former.” If the intention to kill is formed and executed “m the heat of passion, upon sudden provocation, or in sudden combat,” we are oí opinion that the case falls within the meaning of Section 12, where it speaks of a killing “ intentionally, but without premeditation.” If the intention to kill is formed before the “ heat of passion, upon sudden provocation, or in sudden combat,” or though formed in the heat of passion is executed after sufficient cooling time,or after the heat of passion h'as subsided, we are of opinion that the case then comes within the meaning of a killing with a premeditated design to effect the death of the person killed.

'So far, then, as the charge of the Court related to a homicide committed in heat of passion, upon sudden provocation, it was correct.

IX. — But the charge comprehended also the case of a homicide committed in sudden combat, and as to this we think it was inaccurate. Where a homicide is committed in heat of passion, in sudden combat, the character of the weapon used is not to be taken into consideration in reference to a provocation, nor in case of such sudden, combat is it necessary that there should have been any legal provocation to render the homicide manslaughter. The question of provocation can hardly be said to arise in case oí homicide in sudden combat. But the character' of the weapon may properly be considered in case of homicide in sudden combat, for the purpose of determining whether the party killing entered upon the combat with a premeditated design to kill; and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purposes of the combat, when his adversary was in possession of no deadly weapon, •or other means of inflicting great bodily harm upon him. We believe that we have considered all the material points made on the . argument. Some questions of fact which were presented it is not necessary to determine in the direction which we give to the casé.

For the errors which we have indicated a new trial must be awarded. .

Ordered accordingly.