HOLDEN, J.
Appellant was convicted of murder in the second degree, and was sentenced to serve a term of from ten to twenty-five years in the state penitentiary, and appeals.
■There are but two questions in this case requiring consideration: (First) Did the court commit reversible error in giving instruction No. 23, defining malice; and (second), Did the court err in refusing to give appellant’s requested instruction No. 19 ?
Instruction N’o. 23, defining malice, reads as follows:
“The court instructs the jury that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will towards an individual, but is intended to denote an action flowing from any wicked and corrupt motive — a thing done with a wicked mind — where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty and fatally bent on mischief ; hence malice is implied by law from any cool or deliberate or cruel act against another, however sudden, which shows an abandoned or malignant heart.’’
Appellant argues that the trial court thus, in effect, instructed the jury that it would be justified in finding that an act was done with malice, if done in anger, which would make all homicides murder, if committed in anger, whereas, a killing done in anger might amount only to manslaughter, which is the unlawful killing of a human being without malice. And it might be further argued, with much force, that the above definition of malice is also erroneous because it seems to remove manslaughter from the catalogue of homicides, in that there are many unlawful and unjustifiable motives which have never been classed as malicious.
The above-quoted instruction was first considered by this court and condemned as misleading and erroneous in
State v. Rogers,
30 Ida. 259, 163 Pac. 912, decided in March, 1917, the opinion having been written by Chief Justice Budge. We quote paragraph 4 of the syllabus in that case:
“That portion of an instruction in a trial for homicide which reads: ‘Malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive,’ is erroneous, as it tends to lead the jury to believe that they would be justified in finding that an act was done with malice if done in anger. Whereas a killing done in anger might amount only to manslaughter.”
That instruction was later and again condemned by this court as misleading and erroneous in
State v. Dunlap,
40 Ida. 630, 235 Pac. 432, decided in April, 1925, eight years after the Rogers case,
supra,
was decided. And still later, about ten years after the Rogers ease,
supra,
was decided, this court, in
State v. Foyte,
43 Ida. 459, 252 Pac. 673, again had under consideration an instruction identically like that above quoted, and emphatically stated: “This identical instruction has hitherto twice been declared erroneous,” and for that and other reasons reversed the judgment of conviction against Foyte.
The Rogers case,
supra,
upon the question of malice, was bottomed upon
Commonwealth v. York,
9 Met. (Mass.) 93, 104, 43 Am. Dec. 373, decided in March, 1845. In that case the Massachusetts court said:
“Malice, although in its popular sense it means hatred, ill will or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; the wilful doing of an injurious act without lawful excuse. ’ ’
Continuing, the Massachusetts court, quoting from the opinion of Mr. Justice Bailey, in
Bromage v. Prosser,
4 Barn. & C. 255, said:
“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.”
In March, 1850, in
Commonwealth v. Webster,
5 Cush. (Mass.) 295, 52 Am. Dec. 711, five years after the York ease,
supra,
was decided, and seventy-five years before the Rogers case,
supra,
was decided in this court, the Massachusetts court reversed the York case,
supra;
in fact, the above-quoted instruction, held by this court in the Rogers case,
supra,
to be misleading and erroneous, was taken from the Webster, case,
supra.
However, if that instruction is actually misleading and erroneous, as this court has so emphatically held in at least three different eases, extending over a period of many years, then that instruction must necessarily have misled the jury in the case at bar; therefore, and for that reason, appellant Hunter could not have had a fair and impartial trial.
The dissenting opinion in this ease is bottomed upon the Washington ease of
State v. Dolan,
17 Wash. 499, 50 Pac. 472. In that case the same instruction, defining malice, was given as was given in the case at bar, and seriously objected to, as in this case, but the Washington court in the Dolan ease,
supra,
held that the instruction was good, and that defendant Dolan had no serious ground of complaint. In other words, the Washington court, in the Dolan case,
supra,
held exactly the contrary of what was held in the Rogers ease,
supra.
Nevertheless, it is stated in the dissenting opinion that “While I am still of the opinion that the portion of the instruction criticised in
State v. Rogers, supra,
was erroneous, I am not of the opinion that the instruction herein constituted prejudicial error or such as would justify a reversal, particularly in view of the facts disclosed by the record, in the instant case and in view of the fact of the immediate qualification and explanation by the court.”
We have fully and carefully examined the record in the Rogers case,
supra,
and find that the trial court instructed the jury to consider the instructions as a whole, as the trial
court did in the case at bar, and, further, the instructions in the Rogers case,
supra,
defining the various degrees of murder, as well as malice, were substantially the same as in the case at bar, and, in addition to that,- the explanation and qualifications of the term “malice” contained in the instruction given in the Rogers ease,
supra,
and in this case, are identically the same.
For the purpose of completely removing objections to said instruction, made in
State v. Rogers, State v. Dunlap,
and
State v. Foyte, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
HOLDEN, J.
Appellant was convicted of murder in the second degree, and was sentenced to serve a term of from ten to twenty-five years in the state penitentiary, and appeals.
■There are but two questions in this case requiring consideration: (First) Did the court commit reversible error in giving instruction No. 23, defining malice; and (second), Did the court err in refusing to give appellant’s requested instruction No. 19 ?
Instruction N’o. 23, defining malice, reads as follows:
“The court instructs the jury that malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. Malice is not confined to ill will towards an individual, but is intended to denote an action flowing from any wicked and corrupt motive — a thing done with a wicked mind — where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duty and fatally bent on mischief ; hence malice is implied by law from any cool or deliberate or cruel act against another, however sudden, which shows an abandoned or malignant heart.’’
Appellant argues that the trial court thus, in effect, instructed the jury that it would be justified in finding that an act was done with malice, if done in anger, which would make all homicides murder, if committed in anger, whereas, a killing done in anger might amount only to manslaughter, which is the unlawful killing of a human being without malice. And it might be further argued, with much force, that the above definition of malice is also erroneous because it seems to remove manslaughter from the catalogue of homicides, in that there are many unlawful and unjustifiable motives which have never been classed as malicious.
The above-quoted instruction was first considered by this court and condemned as misleading and erroneous in
State v. Rogers,
30 Ida. 259, 163 Pac. 912, decided in March, 1917, the opinion having been written by Chief Justice Budge. We quote paragraph 4 of the syllabus in that case:
“That portion of an instruction in a trial for homicide which reads: ‘Malice includes not only anger, hatred and revenge, but every other unlawful and unjustifiable motive,’ is erroneous, as it tends to lead the jury to believe that they would be justified in finding that an act was done with malice if done in anger. Whereas a killing done in anger might amount only to manslaughter.”
That instruction was later and again condemned by this court as misleading and erroneous in
State v. Dunlap,
40 Ida. 630, 235 Pac. 432, decided in April, 1925, eight years after the Rogers case,
supra,
was decided. And still later, about ten years after the Rogers ease,
supra,
was decided, this court, in
State v. Foyte,
43 Ida. 459, 252 Pac. 673, again had under consideration an instruction identically like that above quoted, and emphatically stated: “This identical instruction has hitherto twice been declared erroneous,” and for that and other reasons reversed the judgment of conviction against Foyte.
The Rogers case,
supra,
upon the question of malice, was bottomed upon
Commonwealth v. York,
9 Met. (Mass.) 93, 104, 43 Am. Dec. 373, decided in March, 1845. In that case the Massachusetts court said:
“Malice, although in its popular sense it means hatred, ill will or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; the wilful doing of an injurious act without lawful excuse. ’ ’
Continuing, the Massachusetts court, quoting from the opinion of Mr. Justice Bailey, in
Bromage v. Prosser,
4 Barn. & C. 255, said:
“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.”
In March, 1850, in
Commonwealth v. Webster,
5 Cush. (Mass.) 295, 52 Am. Dec. 711, five years after the York ease,
supra,
was decided, and seventy-five years before the Rogers case,
supra,
was decided in this court, the Massachusetts court reversed the York case,
supra;
in fact, the above-quoted instruction, held by this court in the Rogers case,
supra,
to be misleading and erroneous, was taken from the Webster, case,
supra.
However, if that instruction is actually misleading and erroneous, as this court has so emphatically held in at least three different eases, extending over a period of many years, then that instruction must necessarily have misled the jury in the case at bar; therefore, and for that reason, appellant Hunter could not have had a fair and impartial trial.
The dissenting opinion in this ease is bottomed upon the Washington ease of
State v. Dolan,
17 Wash. 499, 50 Pac. 472. In that case the same instruction, defining malice, was given as was given in the case at bar, and seriously objected to, as in this case, but the Washington court in the Dolan ease,
supra,
held that the instruction was good, and that defendant Dolan had no serious ground of complaint. In other words, the Washington court, in the Dolan case,
supra,
held exactly the contrary of what was held in the Rogers ease,
supra.
Nevertheless, it is stated in the dissenting opinion that “While I am still of the opinion that the portion of the instruction criticised in
State v. Rogers, supra,
was erroneous, I am not of the opinion that the instruction herein constituted prejudicial error or such as would justify a reversal, particularly in view of the facts disclosed by the record, in the instant case and in view of the fact of the immediate qualification and explanation by the court.”
We have fully and carefully examined the record in the Rogers case,
supra,
and find that the trial court instructed the jury to consider the instructions as a whole, as the trial
court did in the case at bar, and, further, the instructions in the Rogers case,
supra,
defining the various degrees of murder, as well as malice, were substantially the same as in the case at bar, and, in addition to that,- the explanation and qualifications of the term “malice” contained in the instruction given in the Rogers ease,
supra,
and in this case, are identically the same.
For the purpose of completely removing objections to said instruction, made in
State v. Rogers, State v. Dunlap,
and
State v. Foyte, supra,
and in the ease at bar, as well as the removal of the possibility of further like objections in future cases, to the effect that a jury would be justified, under such instruction, in finding that an act is done with malice, if done in anger, whereas a killing done in anger might be justifiable as in self-defense, or amount only to manslaughter, which is the unlawful killing of a human being without malice, and for the information of the bar, and future guidance of our trial courts, we have formulated, to be added at the close of the above-quoted instruction, the following:
You are further instructed that all anger is not malice; that one may be angry or indignant, and yet have no malice in his heart, or he may entertain a feeling of ill-will without thought of doing bodily harm to him who is the object of his dislike, yet anger or ill-will, or both, sometimes inspire and characterize malice which leads to murderous violence. It is such anger and ill-will, evidencing a wicked and corrupt intent, a condition of heart and mind having no regard for social or moral obligations, which constitutes legal malice within the meaning of this' instruction.
We now come to the second question, to wit, Did the court err in refusing to give appellant’s requested instruction No. 19?
That instruction, stated in the exact language of the statute, is as follows:
“When it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be
convicted of the lowest of such degrees only.” (Sec. 19-2005, I. C. A.)
We have very carefully examined the instructions of the trial court, and find that while the court fully and correctly instructed the jury generally as to the law of reasonable doubt, it did not instruct the jury that if they found it established by the evidence, beyond a reasonable doubt, that the defendant had committed a public offense, but were in doubt as to which of two or more degrees he was guilty, he could be convicted only of the lowest degree included in the charge stated in the information. The appellant was clearly and unquestionably entitled to have the requested instruction given to the jury.
(Hatfield v. Commonwealth,
230 Ky. 630, 20 S. W. (2d) 461;
Elliott v. State,
105 Tex. Cr. 8, 284 S. W. 961;
Hayes v. Commonwealth,
210 Ky. 449, 276 S. W. 160;
Coolman v. State,
163 Ind. 503, 72 N. E. 568;
State v. Heft,
148 Iowa, 617, 127 N. W. 830;
Arnold v. Commonwealth,
(Ky.) 72 S. W. 753, 24 Ky. Law Rep. 1921;
State v. Dolan,
17 Wash. 499, 50 Pac. 472, 476; 30 C. J., sec. 666, p. 422, and cases cited. See, also,
Wells v. Territory,
14 Okl. 436, 78 Pac. 124;
State v. McPhail,
39 Wash. 199, 81 Pac. 683;
State v. Foley,
174 Wash. 575, 25 Pac. (2d) 565;
Frank v. United States,
42 Fed. (2d) 623.)
And further, the case of
State v. Dolan, supra
(cited in, quoted from, and relied upon, in the dissenting opinion), supports the majority view, and holds squarely against the minority opinion, on the second and last above-stated question, as an examination of that case will disclose. Later Washington eases approving and following the Dolan case, on that point, are:
State v. Donofrio,
141 Wash. 132, 250 Pac. 951;
State v. Dale,
110 Wash. 181, 188 Pac. 473;
State v. Dengel,
24 Wash. 49, 63 Pac. 1104;
State v. Young,
22 Wash. 273, 60 Pac. 650.
Upon the authority of the Rogers, Dunlap and Foyte eases,
supra,
and the Dolan case and other cases hereinbefore cited, the judgment must be reversed and a new trial granted, and it is so ordered.
Morgan, J., concurs.