Commonwealth v. Gilbert , 165 Mass. 45 ( 1895 )

Allen, J.

1. The government was in no way responsible for the outbreak of the witness. It was an incident which could not be guarded against in advance. The witness was called because her testimony was deemed to be important, in the interest of justice. Such an outbreak might occur from a hysterical or highly emotional person who was not a witness. The jurors are supposed to be men of sufficient character and sense to enable them to disregard such an incident. To assume the contrary would be to strike a blow at the system of trial by jury, which is thought to be a great bulwai’k for innocent persons who are accused of crime. The court might well refuse to stop the trial. The jury were fully cautioned, everything was done which could be to prevent injury to the prisoner, and time enough elapsed before the case was committed to them to enable them to recover from any temporary excitement. Commonwealth v. White, 147 Mass. 76. Nichols v. Nichols, 136 Mass. 256. Lindsay v. State, 46 Neb. 177.

2. The second request for instructions was properly refused. According to this request, if the prisoner had involuntarily taken a small quantity of liquor and was under its influence, though it was not enough to stupefy him or to cause him to lose the control of his faculties to any considerable extent, it would follow, as matter of law, from the mere fact that the liquor was swallowed involuntarily, that the intent necessary to constitute murder was wanting, and that he could not be found guilty. The mere fact that one is slightly under the influence of liquor is certainly no legal excuse for crime, even though the liquor was taken involuntarily. It is very plain that the ruling asked for could not properly be given. The charge to the jury was quite full in respect to insanity, and to the effect of prior habits of intoxication in the prisoner and in his father upon the prisoner’s mental condition, and also-in respect to intoxication for which a man is not himself responsible; and no objection is made to its sufficiency except so far as it was inconsistent with the request which we have considered. The refusal to comply with that request furnishes no ground for a new trial.

3. There was no testimony to show that on the day of the homicide the prisoner was intoxicated to any greater degree than this, namely, that “ he had been drinking to such an extent as to attract observation.”

In accordance with requests of the prisoner’s counsel, the jury were instructed that it was incumbent upon the prosecution to satisfy them that he had sufficient mental capacity to be responsible for his acts, with full explanations in respect to insanity and intoxication ; and no objection is now urged to these instructions and explanations. But as a final request the prisoner’s counsel asked the court to instruct the jury that “ the words ‘ extreme atrocity and cruelty ’ used in the statute do not mean mere violence, but involve the knowledge of the character of the act in the mind of the agent.” This instruction was refused.

This request relates to the degree of murder. By Pub. Sts. c. 202, § 1, “ Murder committed with deliberately premeditated malice aforethought, or in the commission of or attempt to commit a crime punishable with death or imprisonment for life, or committed with extreme atrocity or cruelty, is murder in the first degree.” And by § 2, “ Murder not appearing to be in the first degree is murder in the second degree.”

The jury were clearly instructed that there could be no conviction of murder in either degree unless malice aforethought should be proved, with explanations of what this means and involves ; and that no question of degree would arise unless they should first determine that the prisoner had committed the crime of murder with malice aforethought. The question presented by the final request therefore is this: Assuming a killing with malice aforethought, which would be murder in the second degree, was it incumbent on the prosecution, in order to obtain a conviction of murder in the first degree on the ground of extreme atrocity or cruelty, to show that the prisoner had knowledge of the character of the act? This must mean, we think, knowledge that the act of killing was attended with extreme atrocity or cruelty.

This precise question has not been presented in this form before, though decisions have been cited as bearing upon it. Commonwealth v. Desmarteau, 16 Gray, 1. Commonwealth v. Pemberton, 118 Mass. 36. Commonwealth v. Devlin, 126 Mass. 253. See also Commonwealth v. Lufkin, 7 Allen, 579; Commonwealth v. McClellan, 101 Mass. 34, which are cases of cruelty to animals.

We do not think this special knowledge of the character of the act is an element which enters into the statutory description of a murder committed with extreme atrocity or cruelty. The intelligence and mental capacity requisite for the commission of murder were found to exist. Knowledge that the crime was extremely atrocious or cruel is not required. If the prisoner was a responsible agent, the statute providing that murder committed with extreme atrocity or cruelty is murder in the first degree calls for no greater degree of knowledge than is required for a conviction of murder in the second degree. This is a separate and distinct ground from that of deliberately premeditated malice aforethought; the requirement of deliberate premeditation clearly is not attached to murder committed with extreme atrocity or cruelty; nor is any degree of purpose, intention, or knowledge, beyond what is involved in the commission of murder with malice aforethought. This of itself excludes an accidental homicide. A murder committed with malice aforethought may be found to have been committed with extreme atrocity or cruelty, even though the murderer did not know that his act was extremely atrocious or cruel. The circumstances would give him reason to believe that he was causing pain to his victim, and indifference to such pain, as well as actual knowledge thereof and taking pleasure in it, constitutes cruelty; and extreme cruelty is only a higher degree of cruelty.

Exceptions overruled.