State v. Anselmo , 46 Utah 137 ( 1915 )

FRICK, J.

Giovanni (John) Anselmo, the appellant, was convicted in the District Court of Salt Lake County, Utah, of the crime of murder in the first degree, without recommendation, and was sentenced to be executed. He appeals from that judgment.

The state’s evidence in chief substantially established the following facts:

At about eight o’clock on the morning of June 25, 1913, the appellant and one Pete Massi, acquaintances, both Italians, were drinking together in what is called the Shamrock Saloon at No. 217 West Second South Street, Salt Lake City. They played cards and quarreled over the game, which quarrel finally culminated in what the witnesses called a scuffle or fight. Massi, it seems, got appellant down on the floor and was standing over him when the bartender interfered, and, using his own language, ordered them to “cut it out” — told them they would not be permitted to quarrel or fight in the saloon. The two young men ceased their quarrel and came into the barroom from the room immediately in the rear thereof where the encounter took place. The appellant laid a silver dollar on the bar, and, addressing both Massi and the bartender, said: “Let’s have a drink.” They all drank, and Massi pushed back his coat and shirt, and referring to the fight between himself and appellant, said: “I am cut on the shoulder.” The bartender says that he saw a small wound on Massi’s shoulder and saw a little fresh blood. Massi then wanted to use. the saloon telephone to call a police officer, but the bartender refused him the use of it, and the appellant and Massi left the saloon together. Where they went is not shown. The bartender testified that appellant had taken five drinks that morning. The state also proved that at about nine o’clock on the same niorning appellant purchased a .32 Smith & Wesson revolver and a box of cartridges from one of our dealers in firearms. The price of the revolver was $18 and its number was 55578. After they parted, about ten o’clock, or a little after, the appellant went into what .is known as the Shamrock Cafe, which is next door to the Shamrock Saloon. He there “jollied” one of the waiter girls, as she called it, by taking hold of her and lifting her up from the floor, and after she had “slapped him,” as she says, he sat down on a box in a small room between the kitchen and the main dining room in the cafe. The yonng woman testified that she observed that he had been drinking, and that he appeared pale, and was sitting on the box aforesaid, leaning forward, holding his head in his hands. The foregoing statements are substantially corroborated by another witness, also a waiter girl, who saw the appellant that morning. Both of the girls were acquainted with him. Whilé appellant was sitting on the box, as just stated, Massi and the deceased, a member of the police force of Salt Lake City, dressed in the regulation uniform of a policeman, came into the cafe and went to where appellant was sitting. The officer, after going to appellant, put his hand on appellant’s shoulder, and addressing him, said: “What is the matter, boy?” Massi then pulled his coat and shirt aside, and, pointing to and exhibiting what he called a cut on his shoulder to the officer, said: ‘ ‘ That is what is the matter. ’ ’ The officer then spoke to appellant and said: “You had better come with me.” Appellant replied: “ Wait a minute. Let me explain. ’ ’ The officer said: ‘ ‘ There will be no explanation. Wait till you get to police headquarters.” The officer, appellant, and Massi then left the cafe together, going east along the sidewalk to the first intersection of the street east of the saloon, at which point there was a-patrol box. The officer was in the act of going to the box, when appellant broke away from him and ran south along the street running north and south until he reached an open space, where he turned to the west. The officer and Massi, in the order named, followed appellant, and when they had reached a point in the open space aforesaid in the rear of what is called Sweet’s Candy Establishment, and the officer was within a few feet of appellant, the latter turned and fired three shots at the officer, all of which lodged in his body. The one causing death passed in at the front and near the top of the forehead, and, passing through the brain, lodged a little back of the ear. This bullet, the doctor testified, caused a fatal wound and produced almost instantaneous death.

There were at least three eyewitnesses to the shooting, and while there are the usual discrepancies in such cases the foregoing substantially covers the material facts developed by the evidence. The shooting occurred some time between ten and eleven o'clock on the morning aforesoid. We remark that some effort was made by counsel for appellant to show that appellant was threatened with violence by the officer at the • time of the shooting, but a careful reading of the evidence in the original bill of exceptions convinces us that there is no evidence whatever upon which the jury could have based such a conclusion. The only inference that is permissible from the whole evidence is that the appellant shot the deceased to avoid being taken to the police station, which the deceased was in .the act of doing when appellant broke away from him as before stated.

Appellant made his escape, but was found in a shanty in the rear of his aunt’s dwelling between nine and ten o’clock on the night of the day of the shooting. When he was arrested by the police officers, the revolver which he had bought in the morning, together with a duplicate “sale slip,” were in his possession, and at the time of the arrest he was apparently again attempting to use the revolver. In making the arrest appellant wás wounded by a shot fired by one of the officers. He was taken to the Salt Lake County'Jail immediately after his arrest, where he was constantly confined until the time of his trial, in December, 1913.

The evidence produced on behalf of appellant relating-to his mental condition is substantially as follows:

At the time of the trial he was twenty-one years of age. He is an Italian by .birth, and came to the United States in 1910 with a friend of his father. His father, with an older brother of appellant, lived in Salt Lake City, and had lived there for some years when appellant came to this country. The evidence, without dispute, was to the effect that appellant is what is called an epileptic; that he suffered from epileptic attacks from childhood up to the time that he shot the deceased in 1913; that the attacks had been less frequent and less violent in the later years; that his mother was a daughter of a confirmed drunkard, who died at the age of twenty-eight years from alcoholism, and was also an epileptic and regarded of unsound mind; that appellant’s grandmother was an epileptic and became insane; that an nncle on the mother’s side was also an epileptic, and died before reaching the age of forty years, and only two days after an epileptic attack; that said nncle had two daughters, both of whom were epileptics; that another uncle had four daughters, all of whom were neurotics and epileptics; that the children of those daughters were afflicted with epilepsy and were sickly; that appellant’s mother is an epileptic, and, in the town in Italy where she lives, is regarded of unsound mind; that appellant’s father as a child was afflicted with epilepsy, and the testimony is to the effect that mentally he is abnormal; that the father’s father, appellant’s grandfather, died at the age of forty-two years from alcoholism, and for some years before his death was regarded as of unsound mind ; that the latter’s daughter, one of appellant’s aunts, was an epileptic and died insane; that she had but one child, and it was subject to “convulsions,” and died at the age of two years; that the father’s mother, appellant’s grandmother, was an epileptic, and died of senile dementia; that she had two brothers, the son of one of whom was- an epileptic, while the other one of the two brothers was a neurotic; that an older brother was afflicted with epilepsy until he was eight years of age, after which time his mind became weak and he has practically become what is termed ‘ ‘ silly and idiotic”; that the youngest sister of appellant has been afflicted with epileptic attacks ever since infancy, and is partially paralyzed. The foregoing statements are gleaned from the depositions of doctors, public officials, and business men living in Italy who were acquainted with the Anselmo family ,and their relatives. There were also other witnesses who lived in Salt Lake City who testified to appellant’s epileptic attacks in 1910 and explained his mental condition to the jury. There was also a large volume of testimony from persons living in Italy, as well as from some living in Salt Lake City, to the effect that appellant had always borne a good reputation, and’ that he was quiet, law-abiding and a peaceable young man. There was also testimony from the landlady of the house in which appellant and his father rented the room in which they lived at the time of the homicide that the appellant was kind and affectionate, that he was quiet, and that his reputation for peaceableness and quiet was good, and that he had spent his evenings at home. There was also evidence by experts, who testified both for appellant and for the state, explaining fully to the jury the effect of epilepsy on the mind, and how alcoholic stimulants generally affect epileptics.

The appellant also gave his version of the drinking and quarrel with Massi at the saloon, his arrest by the deceased in the morning, of the shooting afterwards, and of his flight and consequent arrest at night. It is not deemed necessary to state further the evidence in that regard, except to state that according to his statement, he had taken six drinks of 'whiskey before the arrest was attempted by the deceased, and that his system was not in a condition to withstand the effects of alcohol; that he was confused and frightened after his quarrel with Massi.

Three doctors, who had examined the appellant several times after the homicide and before the trial, also testified that he had an enlarged thyroid, that his head was somewhat deformed, and that affections of the thyroid had a tendency to produce various diseases. At least two of the doctors called as experts by the defendant went into great detail respecting the effect a diseased thyroid has on the mind and nervous system. After the doctors had testified fully respecting epilepsy and its effects, counsel for the appellant propounded to Dr. Mayo, one of the experts, a hypothetical question containing fully 6,000 words, in which defendant’s diseases, idiosyncrasies, weaknesses, and, in short, his life’s history as disclosed from the evidence, was detailed, and the question concluded by asking the doctor “whether or not, in your opinion the defendant, during the period and at the time when the shots were fired, was of sound or unsound mind.” The doctor answered: “I think he was of unsound mind.” To another doctor was propounded the same, or a similar, question, the concluding part of which was: “Would you expect to find in this defendant a healthy individual mentally, or one weak mentally and subject to epilepsy?” The doctor answered : “I would 'naturally expect one of weak mentality and weak nervous condition, and from that we could deduce the probability that he might be epileptic.” The state also called a doctor, wbo was an expert in nervous and mental diseases, including epilepsy, and be, after considering tbe facts wbicb tbe experts for tbe defendant bad considered, and passed their opinions upon, expressed bis opinion that tbe defendant, at tbe time indicated, was mentally responsible.

I refer to the foregoing only for the purpose of calling attention to the substance of the evidence respecting appellant’s mental condition. While the jury found that his condition in that respect was not such as to affect his mental capacity to relieve him from responsibility, yet it may have been such as to affect his mental capacity to coolly deliberate 1 and premeditate on his acts. The jury, therefore, as hereinafter suggested, should have been instructed to consider all of the foregoing evidence in determining appellant’s mental capacity to deliberate and premeditate the homicide. While one’s mental condition may not excuse the act, it may nevertheless affect the degree of guilt.

Massi, it appears, had left for parts unknown, and was not a witness at the trial. In addition to the testimony of the state’s experts, already referred to, the state, on rebuttal, proved that during all of the time appellant was in jail, as before stated, he suffered no epileptic attacks, that he seemed normal, and was a model prisoner. The state also produced other evidence on rebuttal, and what is deemed material will be referred to hereafter in connection with the points decided.

Appellant’s counsel have assigned 263 errors, all of which are relied on and are argued more or less fully in the twenty-three subdivisions of their brief, and part of which were supplemented by oral argument lasting nearly five hours. We shall, however, discuss only such assignments in this opinion as we deem material in view of the conclusions reached.

The first assignment relates to an alleged error committed by the trial court in refusing to grant appellant’s motions for a continuance and change of place of trial. Appellant produced the affidavits of forty-three 2 residents of Salt Lake County, among whom were lawyers, doctors and business men, who in effect deposed that, owing to the excited state of the public

mind in Salt Lake County then prevailing, which excitement affiants deposed was induced by reason of the fact that only a few days before the ease was called for trial one Lopez, a fugitive from justice, had killed three deputy sheriffs and two others while they were attempting to arrest said fugitive for the crime of murder. The affiants, therefore, gave it as their conclusion that the appellant could not then have a fair and impartial hearing in said county. Upon the other hand, there were forty-eight residents of Salt Lake City, among whom were also lawyers, doctors and business men, who deposed that it was their belief that the appellant could and would be given a fair and impartial trial. We have frequently held (State v. Haworth, 24 Utah 398, 68 Pac. 155; State v. Vacos, 40 Utah 169, 120 Pac. 497; State v. Riley, 41 Utah 225, 126 Pac. 294, and cases there cited) that the granting or denying of motions for continuances and for change of place of trial upon the ground of excitement or bias, in the nature of things are, and must be, largely within the discretion of the trial court, and that we cannot interfere with the rulings of that court unless it is made to appear that the court has abused its discretion in that regard. While in view of some of the things that are made to appear in this record it would seem that the public mind must have been affected to a considerable extent, and for that reason we would have felt better satisfied had the court granted a continuance of the ease for a reasonable time, yet in view of the whole rec-. ord we cannot say that the court abused its discretion, and hence this assignment must fail.

It is next urged that the court erred in restricting appellant’s counsel in his cross-examination of some of the state’s witnesses. There is no merit to this contention. While courts are very loth to restrict cross-examination, and 3 especially so in capital cases, yet there is no reason whatever why the court should not confine the cross-examination within reasonable bounds. The court did not even dp that in this pase; but merely because the cross-examiner was not permitted to repeat over and over again questions upon subjects which he had already fully developed, he complains of having been unduly restricted. The court, without prejudice to his client’s rights, might well have further restricted him in his cross-examination.

It is also insisted that the court committed error in permitting counsel for the state, over the objection of appellant, to propound and repeat improper and unfair questions to appellant’s father, who testified as a witness on the 4 former’s behalf. Indeed, it is argued that the state’s counsel was guilty of gross misconduct in that regard. It could subserve no useful purpose for us to repeat the questions propounded by counsel. It must suffice to say that, while we are not prepared to hold that the conduct of counsel was such as to affect the verdict of the jury, yet we are of the opinion that the propounding of the questions complained of bordered upon, if it did not amount to, misconduct. In the following cases conduct on the part of counsel similar in character to that complained of here is discussed and considered in all of its phases: State v. Williams, 65 N. C. 505; Augusta, etc., Ry. Co. v. Randall, 85 Ga. 297, 11 S. E. 706; State v. Fischer, 124 Mo. 460, 27 S. W. 1109; Magoon v. Boston, etc., Ry. Co., 67 Vt. 177, 31 Atl. 156; Schlotter v. State, 127 Ind. 493, 27 N. E. 149; People v. Ryan, 108 Cal. 581, 41 Pac. 451; People v. Mullings, 83 Cal. 128, 23 Pac. 229, 17 Am. St. Rep. 223.

We suggest that counsel carefully read the foregoing cases, and as near as possible follow the rule there laid down with respect to their conduct in presenting argument to the jury or in propounding questions during the trial. Counsel in their zeal seldom appreciate the injury that may follow from certain conduct on their part occurring during the heat of a trial, and while their conduct should not be too strictly judged, yet they must not transcend the bounds of propriety, regardless of what they may think of the truthfulness or untruthfulness of statements of witnesses. In view that this judgment must be reversed and the cause remanded for a new trial for other-reasons, we have deemed it best to refer to this matter in order to prevent the recurrence of the particular thing complained of, and not that it alone may or did affect the verdict, but had such a tendency.

It is further contended that the trial court erred in its charge to the jury with regard to when an arrest by a peace officer is legal. Upon that subject the court charged the jury as follows:

“You are instructed that an arrest is made by an actual restraint of the person of the individual arrested, and that an arrest is lawful when made by a member of the police force of any city in either of the following eases: 5, 6 (1) For a public offense, created either by city ordinance or by the statutes of the state, committed or attempted in the presence of the arresting officer; (2) When the person arrested has committed a felony, though not in the presence of the arresting officer; (3) when a felony has been in fact committed, and the arresting officer has reasonable cause for believing the person arrested to have committed it; (4) upon a charge made upon a reasonable cause of the commission of a felony by the party arrested. ’ ’

In the instruction following the foregoing the jury were advised of the rights of a citizen “if an arrest * * * is unlawful.” The jury were also informed of the rights of the officer “if the arrest is lawful.” The court then defined what constitutes a felonious assault, and left the jury to determine for itself whether the arrest of appellant by( the deceased on the morning of June 25th was “lawful” or “unlawful.” To thus permit the jury to speculate upon whether the deceased had legal authority to make the arrest or not constitutes error. The decisions of the courts are practically unanimous that whether an officer was authorized to make an arrest, or whether the arrest was lawful or unlawful, when the facts are not in dispute, is a question of law for the court. Where, however, the facts are in dispute, and while the question on a given state of facts is still one of law, yet the jury must find the facts, and the court charge them in specific terms under what state of particular facts, when found, an arrest is lawful or otherwise. See Creighton v. Commonwealth, 83 Ky. 142, 4 Am. St. Rep. 143, and cases cited. It is there said:

“The defense had the undoubted right to show that the deceased, in attempting to arrest him, was acting without any authority; and that being a fact in issue, the court should have- determined the question and not the jury, as to the right of the deceased to make the arrest.”

See, also, Diers v. Mallon, 46 Neb. 121, 64 N. W. 722, 50 Am. St. Rep. 598, and People v. Kilvington, 104 Cal. 86, 37 Pac. 799, 43 Am. St. Rep. 73. Indeed, there is no substantial difference of opinion among the authorities upon this question. From the facts, as we have stated them, therefore, nothing is made to appear that appellant had in fact committed a felony, and it certainly does not appear that he committed either a felony or'a misdemeanor in the presence of the deceased, or that he had been charged by any one of having committed a felony, as was the case in People v. Kilvington, supra, and in Carson v. Dessau, 142 N. Y. 445, 37 N. E. 493. It must be remembered that Massi, the only person who seems to have known just what act or acts appellant had committed before the deceased attempted to arrest the appellant, did not testify in the case, and hence what, if anything, he may have known or may have communicated to the deceased relative to appellant’s acts or conduct preceding the arrest is not disclosed. It is conceded by counsel for the state that the evidence respecting the right of the .deceased to arrest the appellant under our statute is purely inferential. Upon that subject all that is claimed is stated in the state’s brief in the following words:

"It is true there was no affirmative proof that the fact of a quarrel between Massi and the defendant, or that during such quarrel the defendant had used a deadly weapon upon Massi, had been communicated to the officer, nor that a request had been made by Massi to the officer that he (the officer) arrest the defendant because of the fact that the defendant had, during such quarrel, used a deadly weapon upon him which he had concealed about his person, nor that the presence of the officer was for the purpose of arresting the defendant because of a violation of the city ordinance with reference to carrying concealed weapons, or because of the fact that an assault with a deadly weapon had been made upon Massi. Proof of these affirmative facts was unnecessary. The jury would have the right to infer such facts from the evidence introduced regarding the circumstances of the quarrel, the use of the razor by the defendant during such quarrel, the fact that Massi at the termination of the quarrel had attempted to use the telephone at the saloon for the purpose of calling an officer, the fact that immediately after the quarrel he left the saloon, and that a short time thereafter he returned in company with an officer — an officer having no personal acquaintance with the defendant, and who, upon ap‘proaching the defendant in the room, addressed him and made inquiry regarding the nature of the trouble. All these facts lead to the reasonable conclusion that the officer had been informed by Massi of what had occurred, and had been requested to arrest the defendant, both because of the fact of the assault upon him with a deadly weapon, and because of the further fact that the defendant then had such a deadly weapon concealed about his person. Such conclusions might properly be made by the jury from the facts then in evidence. It was within the right of the state to show the facts in the ease, one of which was the ordinance in question. It was the province of the jury from these facts, together with any reasonable inference to be drawn therefrom, to conclude whether a public offense had been committed in the presence of the officer, or whether such officer had reasonable cause before making the arrest of the defendant to believe that he had committed a crime, or whether both of these conditions existed.”

It is not deemed necessary, and I shall not attempt to enlarge upon the reasons why counsel’s claims are entirely too sweeping, except to say that the jury had no right to assume or infer what particular thing or fact Massi communicated to the deceased respecting appellant’s conduct. If such an assumption can prevail, then it never would be necessary to prove authority, since it could always be inferred that the officer, must have been informed that a felony had been committed and that the accused in all probability committed it. There was no evidence to show that appellant had in fact cnmmittp.fi a felony, nor that the deceased had reasonable cause to believe that appellant had committed it, if in fact he had committed one. All this was left to conjecture pure and simple. The state, therefore, utterly failed to prove any fact or facts from which the court could say, or the jury could have found under proper instructions, that the deceased was authorized to arrest the appellant. The case, therefore, is one of failure of proof upon that subject, and hence the court should have charged the jury that here was no evidence respecting the officer’s right or authority to arrest the appellant. The case must therefore be treated as though the deceased had committed a technical trespass in attempting to arrest appellant. Nor does the city ordinance prohibiting the carrying of concealed weapons, introduced in evidence, help the matter. Nothing is shown that the deceased attempted to arrest the appellant for carrying concealed weapons, or that the deceased even knew or had cause to suspect that appellant had a revolver in his possession. Indeed, it would seem that the deceased neither knew nor suspected such to be the fact, else he would have taken the revolver from appellant before attempting to take him to the police station.

In case a homicide has been committed, then in máking, or in attempting to make, an arrest, the question of the authority of the officer or person maldng, or attempting, the particular arrest is always important upon the 7 question of the degree of guilt of the accused. Where, therefore, an officer is killed in making an arrest, who it is claimed was without authority to make it, the jury, from all the facts and circumstances disclosed by the evidence, must determine whether, by reason of the making, or attempting to make, the arrest in the manner and under the circumstances it was made, or attempted, the killing constituted murder in any of its degrees, or merely constituted manslaughter, or whether it was justified in law. In the case at bar I think the question of appellant’s right to resist the arrest in question was properly and fairly submitted to the jury by the trial court. Although an officer or other person may make, or attempt to make, an arrest without legal authority so to do, yet the person arrested may not, for that reason alone, kill the person or officer making or attempting to make an illegal arrest. Such a homicide may still be murder in the first degree, if the facts and circumstances under which it occurred bring it within the statutory definition of first degree murder. It certainly is not the law — and we trust never will be in this jurisdiction — that a citizen may kill an officer with impunity merely because such officer may make an attempt to arrest the citizen without legal authority so to do. True, the right of the citizen to enjoy liberty at all times is sacred, and may not be interfered with without legal right or authority by any one. Yet, upon the other hand, the citizen may not ruthlessly take the life of any one who may interfere or attempt to interfere with that liberty. Where an- unlawful arrest is attempted by an officer or another, the person sought to be thus unlawfully arrested may no doubt resist such an arrest with all proper and reasonable means. He may, however, not kill the offending officer or person, unless it reasonably appears to such citizen that his life or limb is in danger. In other words, life may not be sacrificed in such cases, unless it is done pursuant to the right.of self-defense, the same as in other cases of personal trespass. 1 Bishop, Cr. L., Section 868; State v. Byrd, 72 S. C. 104, 51 S. E. 542; State v. Meyers, 57 Or. 50, 110 Pac. 407, 33 L. R. A. (N. S.) 143; People v. Price, 9 Cal. App. 219, 98 Pac. 547; Roberson v. State, 43 Fla. 156, 29 South. 535, 52 L. R. A. 751; Creighton v. Commonwealth, supra; Williams v. State, 44 Ala. 41. The Supreme Court of Alabama, in stating the respective rights of the citizen and the officer where an illegal attempt to arrest such citizen is made, in the last case cited, says:

“The citizen may resist an attempt to arrest him, which is simply illegal, to a limited extent, not involving any serious injury to the officer. He may oppose a felonious aggression upon him in the execution of a lawful arrest, even to slaying the officer, when it cannot otherwise he prevented. But where he has no reasonable cause to apprehend any worse treatment than a legal arrest should subject him to, it is his duty to submit and seek redress from the law.”

In the case of State v. Meyers, supra, the Supreme Court of Oregon states the rule thus:

“Where the arrest is made by a known officer, and nothing is to be reasonably apprehended beyond a mere temporary detention in jail, resistance cannot be carried to the extent of taking life.”

As we have pointed out, there is nothing shown in this case from which the jury would have been justified in finding that appellant had any reasonable cause to believe that the deceased in any way threatened his life or physical safety in making the arrest in the cafe, and whether he had any reasonable cause to believe or apprehend any bodily harm, great or otherwise, at the hands of the officer or Massi when the rearrest was attempted, as we shall see hereafter, was fully and properly submitted to the jury. The appellant had a clear remedy if his arrest was in fact illegal, and he should have pursued that rather than the one selected by him.

The question, therefore, is: "Was the case properly submitted to the jury upon the facts? This brings us to the assignment that the court committed error in its 8, 9 charge to the jury. The court, in submitting the question of first degree murder to the jury, gave the following charge:

“Premeditated means thought of beforehand, for any length of time, however short. There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as the successive thoughts of the mind. It means a specific intention to take human life, thought of beforehand. If there is such design, or determination to kill, deliberately formed in the mind at any moment before the fatal act is done, it is sufficient. ’ ’

This is all the information the court gave the jury respecting premeditation. The court did, however, as we think, correctly deiine deliberation. Our statute (Comp. Laws 1907, Section 4161), so far as material here, provides:

“Every * * * willful, deliberate, malicious, and premeditated killing, * * * or (any killing) perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life — is murder in the first degree.”

Under our statute, therefore, it is not sufficient that the killing of a human being be intentional and deliberate, but to constitute murder in the first degree, in addition to the foregoing, the killing must be premeditated. The charge of the court that an act can be premeditated within a space of time so brief that the human mind cannot appreciate it— that is, cannot grasp it — seems confusing, to say the least. It is true that quite a number of courts have approved, such expressions in instructions in particular eases under statutes similar to ours. See 3 Thompson on Trials (2d Ed.), Sections 5437 to 5446, inclusive, where instructions approved by various courts are given. Such expressions are also found in the instructions given- in the following cases: State v. Prolow, 98 Minn. 459, 108 N. W. 873; Miller v. State, 54 Ala. 155; People v. Suesser, 142 Cal. 354, 75 Pac. 1093; State v. McDaniel, 94 Mo. 301, 7 S. W. 634; Koerner v. State, 98 Ind. 8; Perugi v. State, 104 Wis. 230, 80 N. W. 593, 76 Am. St. Rep. 865; Binns v. State, 66 Ind. 428; People v. Callaghan, 4 Utah 56, 6 Pac. 49. The Minnesota statute, however, differs from ours. In Binns v. State, supra, the accused had been convicted of first degree murder four different times, and it was manifest that the jury could not possibly have been misled or affected by the charge given. The charge here in question has, however, also been given in at least one other ease which came before this court, namely, in the ease of State v. Dewey, 41 Utah 538, 127 Pac. 275. No objection was, however, made to the charge in such particular, nor was the point in any manner presented or called to the attention of the court in that case. The judgment was reversed on other grounds. In the ease of People v. Callaghan, supra, the accused was convicted of second degree murder only, and the court, in passing upon such an expression in the charge said:

“In this case, the appellant was acquitted of murder in the first degree, and, as applied to murder in the second degree, the offense of which he was convicted, the instruction was correct.”

It is true that the justice, in writing the opinion in that case, in other portions of his opinion seems to approve such an expression; but it requires no argument to show that what he said otherwise, in view of the conclusion reached in that case, could have no bearing upon the real question before us. While we cannot pause to review all of the eases in which such expressions have both expressly and impliedly been approved by appellate courts, yet we do not hesitate to say that a careful reading of those cases will, in almost every instance, convince the reader that the cases were correctly decided, and that by reason of the facts and circumstances involved in them the jury could not have been affected, much less misled, by the expressions used by the trial courts in their charges. Moreover, the definition of premeditation in almost every one of those cases is such that, notwithstanding the expression that “no appreciable time is necessary,” it is nevertheless clearly made to appear from what is said that by the expression “no appreciable time” was in fact meant that no fixed or definite time for premeditation was necessary. That no fixed or definite time is necessary or can be stated to the jury is manifestly sound, and is supported by practically all the courts.

In the following cases, however, such expressions are crit-icised and disapproved: Ross v. State, 8 Wyo. 384, 57 Pac. 931; State v. Rutten, 13 Wash. 203, 43 Pac. 30; State v. Moody, 18 Wash. 165, 51 Pac. 356; State v. Greenleaf, 71 N. H. 606, 54 Atl. 38; State v. Hockett, 70 Iowa 442, 30 N. W. 742. In 1 Wharton’s Cr. Law (11th Ed.), Section 219, speaking of the deliberation and premeditation necessary to constitute murder in the first degree under a statute like ours, the author says:

“Deliberation and premeditation being established, the length of time it existed is immaterial; the homicide will be murder. Design long enough for reflection preceding the killing, and being of sufficient duration for the formation of a definite purpose to kill, may constitute a ‘deliberate and premeditated design to kill.’ A fixed design to kill makes the homicide murder in the first degree; a design to hill formed on the spur of the moment makes the homicide murder in the second degree.” (Italics ours.)

To the same effect is People v. Chiaro, 200 N. Y. 318, 93 N. E. 931. In People v. Majone, 91 N. Y. 212, Mr. Justice Earl states the law under a statute like ours thus:

“Under the statute, there must be not only an intention to' kill, but there must also be a deliberate and premeditated design to kill, Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is. The human mind acts with celerity which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must he determined from all the circumstances of the case.”

In onr judgment the correct doctrine is contained in the foregoing quotation. No attempt should be made to fix any definite space of time which is necessary to constitute the premeditation required by our statute. Why, then, confuse the jurors, who are laymen, with statements which must be utterly incomprehensible to them ? Why tell them that an act, which constitutes the most heinous crime known to the law, and which involves the most momentous consequences to both the slayer and his victim, can be conceived and premeditated (reflected upon) within a space of time so brief that the human mind can neither appreciate nor grasp its duration? And why, after telling them that, attempt to explain it away by again telling them that the statement does not mean just what the words imply ?, Why not inform the jurors in plain and explicit terms just what the law requires? Why not tell them that, while it is not necessary that there be any definite or fixed period of time for premeditation-or reflection, and that no fixed or definite time can be stated, yet that some space of time, however brief, for premeditation, is necessary before the fatal shot is fired or the fatal blow is struck, and that if they find that there was a fixed design or purpose in the mind of the accused to kill for any space of time, however, brief, before he committed the fatal act, and that he committed the same pursuant to such design or purpose, then the killing would constitute murder in the first degree ? The jury should also be informed in that connection that in determining the question of such design and premeditation they should take into consideration all the facts and circumstances developed at the trial, as well as the evidence relating to the mental condition, including that of intoxication of the accused, where such evidence has been introduced and is proper to be considered by the jury, as hereinafter stated.

Moreover, as has been frequently suggested, some men think and act more quickly than others. Again, the same man may think and act differently under different circumstances, and when the mind is or recently has been afflicted with disease, drugs or intoxicants it may act more sluggishly. All these things may, and usually do, have more or less influence upon men’s actions. While, therefore, we are not prepared to say that we should, under all circumstances, reverse adjudgment because the court has charged the jury with regard to premeditation, as was done in this case, yet we do hold that under the evidence in this case relating to appellant’s physical ailments and the effect such ailments may have had on his mental condition the charge, in the form it was given, may have influenced, and in all probability did influence, the jury either to find the defendant guilty of murder in the first degree, or at least in inducing them to withhold the statutory recommendation. While it is true that the jurors were not required to believe the evidence with regard to appellant’s mental condition, yet it is also true that they may have concluded that no appreciable time — that is, no time whatever— for premeditation was necessary, regardless of what that mental condition may have been, so long as they found that appellant was not insane to the extent of being morally irresponsible for his acts. That, as a matter of course, is not the law. A person’s mental condition may not be such as to make him irresponsible for his acts, and yet it may be such as to relieve him from the extreme penalty imposed by law for the committed act. This is the theory upon which our statute giving the jury the right of recommendation is based, and, as we held in State v. Thorne, 39 Utah, 208, 117 Pac. 58, one accused of and tried for murder in the first degree is always entitled to the uninfluenced judgment of a fair and impartial jury upon that question. If, therefore, a person who is both mentally and physically sound is entitled to the judgment of a jury whose minds are uninfluenced from any source, how much more important is it that one whose physical ailments and mental condition incident thereto are by competent evidence shown to be abnormal, to say the least, should be tried by a jury upon such instructions as leave no reasonable room for doubt with regard to what the charge really means upon a subject so important as the one just discussed? Under the particular circumstances of this case, as disclosed by the evidence, therefore, we think the giving of that portion of the charge we have set forth herein constituted reversible error.

The next assignment is closely related to, and must be considered in connection with, the one just discussed, for the reason that it relates to appellant’s mental condition at the time the shooting occurred. As pointed out, appellant’s 10 contention is that at the time the shooting occurred, he was intoxicated, and, in view of his physical ailments, alcoholic liquors had a peculiar effect upon his mind. The court charged the jury as follows :

“You are instructed that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition; but whenever the actual existence of any particular purpose, motive, or intent is a necessary element to commit any particular species or degree of crime, the jury may take into consideration the fact that the accused was .intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. ’ ’

That instruction, after the first four words, is an exact copy of Comp. Laws 1907, Section 4070, and thus states the law of this state upon the subject of intoxication. As an abstract statement of the law it is therefore correct. Appellant’s counsel, however, contend that the instruction in its present form was no guide or aid to the jury, and hence the case was, in effect, submitted to them as though no instruction had been given upon the subject of intoxication. Counsel further contend that they offered a proper request upon the subject, and that the court erred in refusing to charge as requested. We are of the opinion that, in view of the evidence of appellant’s mental condition, including that relating to his intoxication, and especially in view that the court’s attention was directly called to the question by appellant’s request to charge, it, in substance at least, should have charged the jury as requested ; that is, the court, in effect, should have charged the jury that, while voluntary intoxication was neither an excuse nor a defense, yet, if the jury found that appellant was intoxicated to such an extent that he was mentally incapable of deliberating or premeditating, and to entertain malice afore-thongh, and to form a specific intent to take the life of the deceased, in such event the jury should not find him guilty of murder in the first degree. In this case such a charge was very important, in view of the whole evidence relating to appellant’s affliction, which, if the evidence is true, did necessarily more or less affect his mind. And of course the court could not assume, in charging the jury, that the evidence upon that or any other subject was either true or false. Merely to charge the jury in the language of the statute was not sufficient in this case, and it may well be doubted whether it is sufficient in any case where a charge with regard to intoxication is proper. As directly bearing upon this point, see 17 A. & E. Ency. Law (2d Ed.), 408, 409; 21 Cyc. 1047; Cook v. State, 46 Fla. 20, 35 South. 665; People, v. Leonardi, 143 N. Y. 360, 38 N. E. 372; People v. Corey, 148 N. Y. 476, 42 N. E. 1066. In the eases cited this precise question is considered, and instructions like the one in this case are criticised. It is further held in those cases that in cases where, as here, the crime is divided into degrees* and where deliberation and premeditation are necessary elements, the jury should be properly instructed with respect to the effect of intoxication. The jury should thus be told in plain terms that while voluntary intoxication cannot be considered, either as a defense or an excuse for the act charged, yet if they find that the intoxication was to the degree and to the extent hereinbefore stated, such fact would be important in determining the degree, where the crime is divided into degrees. They should also be told that, if they find the intoxication did not affect the mind of the accused to the extent stated, then not to consider the same. The law in this regard is humane, and seeks to temper the penalty or punishment to the moral responsibility involved in the act.

Some time after the homocide the room occupied by the appellant and his father was searched. There was found therein a revolver, a black jack, two masks, and a pair of shoes called sneakers. These, when appellant was on the 11,12 stand, were exhibited to' him on his cross-examination. He said that the revolver belonged to his father, that the black jack was left with appellant the week preceding the shooting by a certain Lugi Garza, a friend, who worked in Ogden, and that the shoes called sneakers he had purchased three or four days before the shooting from a certain dealer in Salt Lake City, who also testified to the purchase. Appellant further testified that he knew nothing concerning the masks. The reason why he bought the shoes he fully explained, and that in all probability he knew nothing about the masks was fully explained by another disinterested witness. Thereupon the state, over his objection, was permitted to introduce all of those articles in evidence; and it is insisted in the state’s brief, and was an oral argument contended by the state’s counsel, that inasmuch as appellant had voluntarily identified those articles and had explained the ownership thereof, no error was committed in admitting them in evidence. It is further contended that all of them were material and competent evidence upon the question of motive and in meeting appellant’s evidence relating to his good character. We think they were improperly received in evidence. Clearly, under the circumstances disclosed by the evidence, those articles could shed no light upon appellant’s motive in doing the shooting. A mere statement of the proposition, in the light of the evidence, it would seem, is sufficient answer to such a contention. How could the possession of such articles bear any relation to the motive which actuated appellant in shooting the deceased, who was a total stranger to appellant when he last saw the articles, if he ever saw all of them ? He thus could 'not have obtained or possessed any one of the articles because he entertained any ill will against the deceased. Indeed, the proposition that the ownership or possession of those articles could not have had any possible relation to appellant’s motive in shooting the deceased is so palpable that it admits of no discussion. Nor is the contention sound that the articles were admissible to meet and refute appellant’s evidence relative to his good character. The only effect that the admission of those articles in evidence before the jury could have had was to convince them that appellant must be a bad man, or he would not have had them in the room he was occupying with his father. Nor does it require argument to' condemn such procedure in our jurisprudence. If any one contended for tbe proposition that, in order to show that one accused of a particular crime was probably guilty of some other offense, or to establish his guilt it was proper to show that he was a bad man generally, or that he had the inclination to commit or the means of committing other offenses, his contention would fall on deaf ears. In principle wherein does the contention here made differ from the supposed one? It is settled law that evidence of good character, or evidence to the contrary, must be confined to the general reputation of the person, or to the general reputation of the particular trait of character in issue. That question was settled in this jurisdiction in the ease of Harrison v. Harker, 44 Utah, 541, 142 Pac. 716. The rule is there stated in the headnote in the following words:

“Where the character of a party is in issue, it is only the general reputation that may be assailed, which cannot be done by proof of particular acts of wrongdoing.”

If particular acts of actual wrongdoing may not be shown, how can the fact that a person possesses the means or the inclination to commit wrongs be shown? In the following cases the question as to what is proper evidence respecting good character is thoroughly considered, and in all of them the rule as quoted from Harrison v. Harker, supra, is not only upheld, but it is strictly enforced; State v. Sterrett, 71 Iowa 386, 32 N. W. 387, approving and following Gordon v. State, 3 Iowa 410; People v. Bishop, 81 Cal. 113, 22 Pac. 477; Bayse v. State, 45 Neb. 261, 63 N. W. 818; Nelson v. State, 32 Fla. 244, 13 South. 361; Cook v. State, 46 Fla. 20, 35 South. 665; McKelvey on Ev. (2d Ed.), 123. The only difference among the courts goes to the extent that the witness who testifies to the good character of the accused and the accused himself may be cross-examined. In Iowa and California cross-examination is very much restricted in that regard, while in most other jurisdictions a more liberal cross-examination is permitted. But the articles are inadmissible for other reasons which are clearly stated by the Supreme Court of California in the ease of People v. Lee Dick Lung, 129 Cal. 491, 62 Pac. 71. That court makes it quite clear that such articles under the circumstances of the case at bar are not admissible for any purpose.

None of the eases relied on by the state are in point upon the proposition involved here. Neither do the recent cases emanating from this court (State v. Riley, supra, and other cases), in which the admission in evidence of certain articles found in the possession of the accused was sustained, have any bearing upon this question. The question, when stripped of all extraneous claims, simply amounts to this: May articles such as disclosed under the circumstances of this record be put in evidence to show criminal propensities, or motive, or bad character? Such a procedure would hardly be tolerated even in continental Europe, and it certainly finds no support in English or American jurisprudence. Moreover, the articles found are not necessarily the implements or instru-mentalities of a confirmed' criminal. Certainly many men have revolvers in their homes, and no one would think of accusing them of being bad men for that reason. Again, masks may be found in some homes, especially among young people; but, so far as we know, they are not so clearly the in-dicia of crime that they can be received in evidence as proof of that fact. Again, many different kinds of shoes may be and are no doubt used by different people. No doubt some good men wear garments similar to those worn by the criminally inclined, but to do so is no crime, nor is it necessarily evidence of a criminal propensity. A black jack no doubt is a dangerous implement in the hands of a criminal, and is perhaps generally used by criminals. But merely to find such an implement in the home of an individual after a homicide has been committed by him is no evidence whatever that he had murder in his heart when he committed the same.

While the homicide committed by the appellant seems quite unjustifiable, and while perhaps he deserves severe punishment, yet no one should, and we hope in this jurisdiction none will, ever suffer the extreme penalty of forfeiting his life until he has been legally convicted. In the eyes of the law no one, however humble, is deemed guilty until he is found so in conformity to law.

The matters hereinbefore considered are not technical, but are substantial. They all directly affect the legal rights of every one. Under our jurisprudence men may be tried only for the specific crime with which they stand charged. All other crimes, with well known exceptions, which the accused may have committed or contemplated, are irrelevant, and may not be shown against him. If other actual offenses may not be shown, then it must follow that facts and circumstances from- which some might deduce an inference that those who have offended might possibly be induced to commit more offenses can likewise not be shown. The court committed manifest error in admitting in evidence the articles referred to.

It is further insisted that the court erred in its charge respecting the effect that the jury should give to the evidence of good character. While the charge is not a model, yet we do not think the appellant was prejudiced in any substantial right by what the court said or omitted to say in that'regard. We remark, however, that the question of the sufficiency of such a charge and the effect that the jury may give such evidence is so fully stated in State v. Brown, 39 Utah 140, 115 Pac. 994, Ann. Cas. 1913E, 1, that it seems wholly unnecessary to discuss this subject further.

Since writing the foregoing, one of my Associates, in a separate opinion, has expressed much doubt whether what I have said upon the question of premeditation states the law, and whether it will not confuse, rather than aid, the trial courts in charging the jury upon that subject. The mere suggestion shows that the writer of that opinion regards the question of time as one of law rather than one of fact. The vice of such a charge consists in attempting to fix or limit the time which is deemed necessary for reflection or deliberation, or which is sufficient for that purpose. I repeat here, what I have already in effect said, that the courts should not attempt to fix or prescribe any time, but should submit the question of whether the killing in question was committed with premeditation and deliberation to the jury, and if they, under all the facts and circumstances relating to the killing, including the evidence respecting the mental condition of the accused at the time if there be such, find beyond a reasonable doubt that the killing was in fact premeditated by the accused, then the statute defining that element has been met, and that question should be found against the accused. Is it not easier to submit a proposition without a specific limitation as to time than it .is to attempt a limitation in that regard, and especially where the law fixes and can prescribe no limitation?

While we are upon this subject it might not be out of place to again refer to what we have several times before referred to, namely, that in charging the jury the trial courts should avoid as much as possible the statement of mere 13 abstract rules or principles of law. See the recent case of Smith v. Cannady, 45 Utah 521, 147 Pac. 210. Jurors are all laymen, and possess no knowledge of legal rules or principles. To merely inform them with regard to the abstract propositions of law, however correct such a statement may be, nevertheless affords them no guide as to how to arrive at a correct conclusion. As a rule jurors possess the requisite intelligence and knowledge to arrive at a correct conclusion with regard to the facts, but in most instances they are entirely unable to apply the law to the facts after they have found them. Whenever such a course is possible, the jury should be told in direct terms that, if they find the facts upon a certain issue or question to be a certain way, the law requires the result to be a certain way, stating what it should be. Whenever the facts are found, the law determines the result, and the theory of our procedure is that the jury shall be untrammeled in determining the ultimate facts, while the courts must direct the result required by the law when the ultimate facts are found or are conceded. Why, then, attempt to direct the jury in arriving at the correct result by merely stating to them abstract principles of law, which the court has determined in its own mind are applicable to the issues in case the ultimate facts are found to be either one way or the opposite? Is it not far better to tell the jury that, if they find the ultimate facts respecting the issue or the question involved to be one way, then the law requires that the result — that is, their verdict or conclusion upon that issue or question — must be a certain way, stating in terms what it should be? The jury thus always finds the facts, while the court in direct terms informs them what the law, upon those facts, requires, and further tells them what the result should be, which, if it covers the whole case, constitutes their verdict. While it is true that by following the abstract method of charging the jury they may, and no doubt often do, arrive at a correct result, yet they also often in effect apply their own conception of the law to the facts, and thus do not arrive at the result the law requires, although the party against whom the issues are declared may not be able, for reasons known to every lawyer, to have the result reversed or modified on appeal.

The ease at bar affords a striking illustration of how a mere statement of abstract rules of principles may be useless "to a jury of laymen. Referring again to the instruction upon intoxication as given in this ease, it is at once apparent to the lawyer that a jury of laymen may read such a charge over and over again and yet receive no light whatever how to apply it to the facts which were produced before them upon that subject. If the jury, however, were told that if, from all the evidence upon that subject, they found that the accused was intoxicated to the extent that he was mentally incapable of deliberating and premeditating the killing, Jie in such event could not, under our law, be guilty of the crime of murder in the first degree, and they should so find, but if, upon the other hand, they found beyond a reasonable doubt that, although he was intoxicated, yet that such intoxication did not affect his mental capacity to deliberate and premeditate, ,or that he had sufficient mental capacity to premeditate and deliberate, and that he did in fact deliberate and premeditate the killing in question, then, if they found all the other essential elements constituting the charge against the accused beyond a reasonable doubt, he would be guilty of murder in the first degree, and they should so find, the jury could not possibly go astray. Of course, in criminal cases the court must define all techincal words and phrases, which is usually done, and in addition to that the court usually also tells the jury just what the material elements constituting the charge are. After doing so, the court could dispose of most questions by simply directing tbe jury in plain terms what the result should be in case they find the facts upon any issue or question as indicated by the court. The principle now under consideration is discussed at some length in Shepard v. Railroad Co., 41 Utah, 469, 126 Pac. 692.

After a careful consideration of all the other numerous assignments, we find nothing worthy of further discussion.

For the reasons stated, the judgment is reversed, and the cause remanded to the district 'court of Salt Lake County, with directions to grant the appellant a new trial.