State v. Hunter

Appellant, charged with first degree murder, was convicted of second degree murder and appeals from such judgment. A recitation of all the facts appearing from the record will not be undertaken. It appears, however, that the deceased and one Peterson visited the Downing farm upon which appellant was engaged in driving a potato digger. Appellant left his work and went over approximately one hundred feet to where deceased and Peterson were engaged in conversation with Mr. Miller and Mr. Downing and addressed deceased in violent and abusive language. Deceased remonstrated and among other things said: "Wait a minute, I don't want any trouble with you. Whereupon appellant struck deceased violently; the deceased endeavored to get off his overcoat and the witness Peterson sought to interfere and said: "Give the man a chance to get his overcoat off." Appellant replied: "No, I will kill him." Appellant then knocked the deceased down and then repeatedly kicked him violently on the head, inflicting the wounds from which deceased died, and at the same time remarking, "I will kill the s_____ b_____." Appellant then went to the potato digger, returned with an iron bar, stepped up to where deceased lay on the ground unconscious, and said: "You Dutch s_____ b_____, get up and I will give you some more; I'll wrap this around your head; I'll kill the both of you."

There is sufficient competent evidence to establish the fact that the kicks inflicted by appellant's shod foot upon the deceased, while the deceased was down, caused the separation of the brain tissue from the skull causing hem. orrhage into the left lateral ventricle of the brain and death. The evidence discloses that the attack was brutal and cruel. Prior to the attack appellant and deceased had had some difficulty over an ejectment proceeding and appellant had threatened to "get" the deceased, and the evidence discloses a clear intention to carry out such threat.

There are but two questions, to my mind, that require consideration, the other assignments are without merit: First, Did the court commit reversible error in giving instruction No. 23 reciting 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 toward 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."

The first sentence of the foregoing instruction has been criticised by this court in former cases. (State v. Rogers,30 Idaho 259, 163 P. 912; State v. Dunlap, 40 Idaho 630,235 P. 432; State v. Foyte, 43 Idaho 459, 252 P. 673; State v. DongSing, 35 Idaho 616, 208 P. 860.) In State v. Rogers, supra, it was said:

"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."

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 and when the whole charge on the subject is considered. (State v. Dong Sing, supra; State v. Rogers, supra; State v. Dunlap,supra.) All errors committed by trial courts are not necessarily prejudicial, otherwise but few cases would not be subject to reversal. There must be such error as results in the denial of some substantial right of the defendant and prevents a fair and impartial trial. (State v. Orr, 53 Idaho 453,24 P.2d 679; State v. Upham, 53 Idaho 340, 14 P.2d 1101; Statev. McKeehan, 48 Idaho 112, 279 P. 616; State v. Muguerza,46 Idaho 456, 268 P. 1.) While the forepart of the foregoing instruction has been disapproved by this court, instructions similar to that given have been held not erroneous in other jurisdictions. The Supreme Court of Washington in State v.Dolan, 17 Wash. 499, 50 P. 472, uses the following language with reference to an instruction such as that complained of:

"Appellant's first objection to the instructions of the court to the jury is that the court erred in stating to the jury in the first paragraph thereof that malice includes not only anger, hatred and revenge, but any other unlawful and unjustifiable motive. And, if the court had gone no further in defining malice, this objection would be tenable, for, as was said in Nye v. People, 35 Mich. 16, there may be unlawful and unjustifiable motives which are not reckoned as malicious. But the portion of the charge in question was immediately qualified and explained by the court; and, when the whole charge upon the subject is considered, we think the appellant has no serious ground of complaint, although the definition of malice as given by the court might, in fact, have been more concise and explicit."

See, also, 29 C. J. 1086, note 49 (a); 2 Brickwood Sackett Instructions, p. 1945, sec. 3062; Commonwealth v. York, 9 Met. (Mass.) 93, 52 Am. Dec. 717; McCoy v. People, 175 Ill. 224,51 N.E. 777; Jackson v. People, 18 Ill. 269; Parsons v. People,218 Ill. 386, 75 N.E. 993; People v. Wilson, 342 Ill. 358,174 N.E. 398; Davidson v. State, 135 Ind. 254, 34 N.E. 972; McDonelv. State, 90 Ind. 320; State v. Hunter, 118 Iowa, 686,92 N.W. 872; People v. Borgetto, 99 Mich. 336, 58 N.W. 328; State v.McGuire, 84 Conn. 470, 80 A. 761, 38 L.R.A., N.S., 1045; Bennett v. State,15 Ariz. 58, 136 P. 276.

Coming now to the second point for consideration: It is contended that the court erred in refusing to give the following instruction at appellant's request:

"The Court instructs the jury that Section 8945 of the Idaho Compiled Statutes Provides:

" '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 lower of such degrees only.' "

Disregarding the fact that this instruction is subject to the criticism that the Idaho Compiled Statutes therein referred to had, prior to the time the instruction was requested, been superseded by the Idaho Code Annotated, and to which it should have referred, I am of the opinion that the refusal to give the foregoing instruction did not constitute prejudicial error. The rule is established in this jurisdiction that a refusal to give a requested instruction, substantially covered by the instructions given, does not constitute prejudicial error. (State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v.Fox, 52 Idaho 474, 16 P.2d 663; State v. Pasta, 44 Idaho 671,258 P. 1075; State v. George, 44 Idaho 173, 258 P. 551;State v. Jurko, 42 Idaho 319, 245 P. 685.) By instruction No. 40 the jury were informed that defendant was charged with murder and that said charge included first degree and second degree murder and voluntary and involuntary manslaughter, and that: "When a crime is by statute differentiated into degrees, it is the duty of the jury to determine by their verdict what degree thereof, if any, has been committed." By instructions Nos. 12 to 16, inclusive, the court differentiated and defined the degrees of murder and manslaughter, and by instruction No. 46 correlated the various degrees of murder and manslaughter with the instructions on reasonable doubt, pointing out that if a reasonable doubt was entertained by the jury as to any of the essential elements marking the degrees of crime, the conviction must be only of the lower degree or the defendant must be acquitted. Instruction No. 48 instructed:

"The Court has not attempted to embody all of the law in this case in any one instruction. In considering any single instruction, you must consider it in connection with all other instructions and construe them in harmony with each other. You are not at liberty to single out a particular instruction and base your verdict upon it alone."

An examination of the instructions given, considered as a whole, discloses conclusively an absence of prejudicial error. The instructions were fair and an examination of the record is sufficiently convincing to justify the statement that appellant had a fair and impartial trial and that the judgment should be affirmed, and it should be so ordered.

Givens, J., concurs.