State v. Thompson

I think the instructions were sufficient to apprise the jury that if the defendant, not meaning to fire the gun, had accidentally done so he could be guilty of no more than involuntary manslaughter. I do not think that because instruction No. 13 was prefaced with the condition (that if the defendant had a gun for the purpose of his own self-protection) it failed to serve the purpose of informing the jury that a gun not intended to be used to injure or kill was accidentally fired it could at the most amount to criminal negligence and thus be involuntary manslaughter. While it would have been better to leave out that limiting clause, in view of the evidence in this case, I do not think the instruction prejudicial. We have said that in determining prejudice we must view the alleged error in view of the whole case. A slight fault in a close case may be prejudicial whilst in a case where the evidence is such that it would be most unlikely that the jury could have been misled by the error, it would not be prejudicial.State v. Hougensen, 91 Utah 351, 64 P.2d 229. In the instant case the evidence of accidental shooting especially after the first shot is so unconvincing that I do not think the conclusion of the limiting clause in instruction No. 13 could have been prejudicial. Moreover, as suggested by the Chief Justice when instruction No. 13 is read in the light of instruction No. 7 the jury was sufficiently informed that the elements required to constitute murder in the first degree founded on depravity and wanton and reckless disregard for the safety of others, must exclude accidental shooting and even such criminal negligence as would constitute only involuntary manslaughter.

I condone the policy of safeguarding the rights of defendants in criminal cases, but if we become too technical and refined in ferreting out defects in instructions which by bare possibility might have misled some jurymen when the evidence is such as to make such defect, in the trenchant phrase of the Chief Justice, "[fade] into nothingness," when viewed by common sense men, we make it almost impossible to conduct jury trials unless the judges are blessed with extraordinary perspicacity.