State v. Russell , 106 Utah 116 ( 1944 )


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  • I dissent. While I am in accord with most of what is said in the opinion of Mr. Justice WADE in distinguishing between first and second degree murder, I am unable to agree that the court committed prejudicial error in its instructions to the jury.

    I shall first consider the error in instruction No. 10 wherein the court instructed that before the jury could find *Page 134 defendant guilty of murder in the second degree it must find that defendant had a specific intent to take the life of the deceased. Under the authorities cited this was error. But I am unable to see how it could possibly have prejudiced defendant. The jury was told that unless the specific intent to kill was entertained, a verdict of murder in either degree could not be found. It was further told by such instruction and instruction No. 9, that though the evidence established malice aforethought and a specific intent to kill, nevertheless premeditation and deliberation must also be established before a verdict of murder in the first degree would be justified. The jury by its verdict, if such instructions were followed, found malice aforethought, a specific intent to kill, deliberation and premeditation. Had the intent to kill not been established then, under the instructions, a verdict of manslaughter would be the only guilty verdict permissible. Why an instruction requiring the establishment of a specific intent to kill in order to establish murder in any degree is not favorable to the accused, I am unable to see.

    As to the inclusion in the definition of murder in the first degree that portion of the statute which provides that a killing "perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life," where such definition is preceded by the expression, "so far as applicable to this case," it must be conceded that thereby — if the instruction be considered by itself — the jury was invited to consider whether the facts before it were such as to evidence that kind of killing. I agree with the opinion in holding that this was error. However, in the light of the other instructions, I am unable to conclude that there is any likelihood that the jury was misled thereby. In instruction No. 9 the jury was specifically directed that unless it found that the killing by the accused was the result of a specific intent to take the life of the deceased and that it was premeditated and deliberate the accused must be acquitted of the charge of first-degree murder. Nowhere in such or other instructions, except as intimated in the criticized portion of instruction No. 7, was *Page 135 the jury told that, absent a specific intent to kill, the defendant could be found guilty of first-degree murder. While in a capital case, where a review of the evidence leaves in the mind of the reader a substantial doubt as to the guilt of the defendant of the grade of the offense of which he stands convicted, slight error in instructions may well be thought to have influenced the jury in reaching its conclusion; yet where it is difficult to conceive of a jury disregarding a specific instruction on the very facts before it and basing its deliberations rather on a general definition of the crime charged, though prefaced as was the definition here, a presumption of prejudice should not be indulged.

    It must be admitted that a careful reading and consideration of the record leaves in the mind a doubt as to whether the inference of deliberate, premeditated killing is to be drawn. Absent the evidence of previous threats upon the part of the defendant, a killing upon a sudden quarrel or in heat of passion would be the almost inescapable inference. This is so because of the nature of the weapon used, the contusions upon the head of the defendant and deceased and other evidences of a protracted quarrel. But with such threats and their environment in the case, a different picture is presented.

    Three women witnesses testified to such threats. Their testimony indicates that there were very frequent quarrels between defendant and his wife. One of such witnesses testified that about two months prior to the homicide while defendant and his wife were living in an apartment house of which the witness was manager, she heard the couple quarreling. Defendant was speaking so rapidly that the witness could not catch all that he said. But she heard deceased exclaim in response to what he said: "You wouldn't want that on your conscience, would you? A blood stain on your conscience, would you?" The witness indicated that the woman spoke in a voice that revealed that she was frightened. Some time afterward the witness in talking to defendant told him that she had heard the way in which he had talked to his wife and warned him that he had *Page 136 a "very bad temper" and unless he controlled it he might kill somebody. Defendant replied that he didn't think he would do that but that "she sometimes makes me feel that I'd like to kill her."

    Some seven or eight months prior to the homicide the Russells were living at an address other than that at which the previously detailed incident occurred. While there, according to two women who lived in the same building, the accused and his wife quarreled very frequently. One of the witnesses testified that during one of these quarrels she heard some one in the Russell apartment being bumped against the wall and heard blows being struck. She concluded that "he was beating her up." On another occasion the same witness heard defendant say to his wife "I will cut your throat, if you don't stop it." On still another occasion, according to this witness, there was a violent quarrel in progress in the Russell apartment during which she heard Mrs. Russell scream and cry out: "Let me up. You're choking me. Call the police." The witness further testified that when she and some other people were admitted to the Russell apartment some minutes later she observed red marks on Mrs. Russell's throat and that the next day the marks had turned black.

    The evidence of previous threats, as pointed out in the opinion of the court, were properly received in evidence. It must, however, be conceded that such evidence may have been given undue weight by the jury in reaching a conclusion that a killing was intentional and deliberate. Especially is this true when, as here, the threats were made in the course of quarrels, where such quarrels were frequent and where opportunities to carry out such threats occurred daily without being put into effect. The threats might amount to nothing more than compensation for a bruised ego. See Some Observations on the Law of Evidence — State of Mind to Prove an Act, by Hutchins and Slesinger, 38 Yale Law Jour. 283. Nevertheless, if the inference of an intentional deliberate killing could reasonably have been drawn by the jury from *Page 137 the evidence including the previous threats, we are not at liberty to draw the contrary inference.

    I believe such inference is not an unreasonable one. Certainly from the evidence of previous quarrels involving physical encounters between defendant and deceased, it is clear that defendant was the aggressor — though the provocation for his attacks is not very definitely revealed. In the light of such fact, disregarding defendant's story of the quarrel which preceded the homicide, as the jury well might do, it is reasonable to conclude that defendant on the night of the homicide was the attacker and not the one attacked. The fact that the two had evidently occupied the bed in their apartment on the night in question; that at the time of the killing the victim was fully clothed and the defendant partly disrobed and in his bare feet, clearly indicate that deceased had dressed to leave the apartment and had done so, and the inference that defendant hastily followed her without waiting to dress is clearly a permissible one. If this be true, then to conclude that the wielder of the knife, rather than the victim of the attack, carried the knife from the apartment, either to prevent her departure or to do her bodily harm is wholly reasonable. Adding to such facts, the previous threats and the circumstances surrounding them. I think it cannot be said as a matter of law that the verdict is unsupported by the evidence. Since I disagree with the majority on the question of the prejudicial effect of the court's instructions, I have detailed the nature of the previous threats and have discussed their bearing on the question of the justification of the verdict rendered.

Document Info

Docket Number: No. 6630.

Citation Numbers: 145 P.2d 1003, 106 Utah 116

Judges: WADE, Justice.

Filed Date: 2/15/1944

Precedential Status: Precedential

Modified Date: 1/13/2023