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Homicidedefinition of "malice."

hostility toward another. 29 C. J. 1084. That is not its legal meaning, but the term nevertheless implies a wicked condition of mind while the homicide is committed; a mind, we may say, committing the very act wilfully. See definitions, 29 C. J. 1080. If the homicide is committed under circumstances sufficiently mitigating or extenuating, the crime is reduced to manslaughter. In Bennett v. State, 15 Ariz. 58, 136 Pac. 276, it was said: "The legal import of the term 'malice' extends beyond, and is more comprehensive than, ill will, hatred, or revenge. It includes all states of the mind under which the killing of a human being by another takes place without any cause which will, in law, justify or excuse it, or mitigate the homicide to manslaughter."

Other courts, too, have adopted a similar definition. State v. McGuire, 84 Conn. 470, 38 L.R.A. (N.S.) 1045, 80 Atl. 761; Logan v. State, Tex. Crim. Rep., 53 S. W. 694. See 29 C. J. 1086. In 13 R. C. L. 764, it is said that the term includes all those states and conditions of mind which accompany a homicide that is committed without legal excuse or extenuation. Fear or terror of such character or degree as to render the accused incapable of cool reflection has been considered as a fact in mitigation or extenuation, so as to reduce the homicide to manslaughter. 1 Wharton, Crim. Law, p. 608; Wharton, Homicide, 3d ed. p. 271. the last-named work, on page 302, it is said: "Likewise, where a person forces his way into a dwelling house and there assaults the owner, and the owner kills him, the forcible entry and assault constitute a sufficient provocation to reduce the killing to manslaughter, where the act of killing was the result of excitement and confusion caused by the entry and assault."

In

The night in question was dark, the windows of the house covered; there were no lights in the house.

When the footsteps of the intruders were heard upon the porch and the sound of the burglars' keys heard in the door, the defendant's heart quaked. The state insists he should have sounded an alarm; that he should have inquired whether the violent and felonious intrusion was intended for purposes innocent or otherwise; and that the failure to do so indicates that he lay in wait ready to fall upon his victim at the opportune moment. The explanation is inadequate. Defendant did not know the intruders; there is not the slightest indication in the evidence that he had cause to suspect that a raid or an attack upon his house would be made at that time. The suggestion that he might have expected the officers of the law to swoop down upon him is based entirely upon speculation, instead of evidence, and would seem to vanish into a bare possibility in view of the fact that defendant had no whisky upon his premises at that time. The defendant says that he was frightened. The statement is not unreasonable. Rudely awakened from his slumbers, or suddenly roused up in his attempt to sleep, he imagined, no doubt, the existence of more footsteps than there actually were. Some men with courageous hearts, especially if accustomed to have people enter their homes at various times of the night, would no doubt have called out, as the state claims the defendant should have done; but to lay it down as a necessary requirement in cases of a felonious entry in a house, in the dark hours of night, in order that an owner, lessee, or occupant may escape the imputation of premeditated malice in an encounter that might take place subsequently, is, we fear, making too great a requirement upon the courage of men, and would be based on an assumption of bravery which, in all likelihood, the greatest portion of humanity does not possess. The effect upon the human mind of darkness in the stillness of the night

alarm on hearing attempted

-duty to give

entry of house.

(Wyo. ; 224 Pac. 420.) Children, penetrate

is a factor well known. women, men hate to places of darkness when the surroundings are not entirely known, or even when fairly well known. A sudden appearance from out the darkness is apt to give, at least, a temporary nervous shock to the stoutest heart. Much more is that apt to be true when, roused from rest or slumber, on a dark night, footsteps and other sounds are heard, which are calculated, as in this case, to give the impression of boding no good. We cannot take too literally the evidence as to the number of minutes it took to open the kitchen door and search the kitchen, only to find that no whisky was to be found. The time, at best, could have been but short, and when the bedroom door was pushed open and a flash light suddenly thrust upon the already excited defendant in the darkness, by parties entirely unknown to him, and unexpected, it is reasonable, we think, to conclude that the effect upon him was to unnerve him, and create in his mind additional confusion, fright, and terror. In fact, his sudden action thereafter bears this out. Had the bedroom door never been opened by the decedent and his companion, the fatal accident would probably never have happened. To hold that, under these undisputed facts, the jury were warranted to conclude that malice was clearly shown, is, it would seem, equivalent to making the rule of reasonable doubt altogether inapplicable in such case.

-degree of homicideabsence of knowledge.

No malice, we think, was shown, and the jury had no right to find the defendant guilty of more than manslaugh

ter.

3. Of the other assignments of error we shall consider those only which we think of sufficient importance to note. Complaint is made of the refusal to give an instruction asked, and of giving instruction No. 18, both relating to the right of the defendant to protect his property

from an unlawful intrusion. The instruction asked is long, and we shall not set it out. Suffice it to say that it includes the idea that defendant had the right to protect the whole house from unlawful intrusion; it goes too far, and is not in accord with what we have already said herein. Instruction No. 18, given by the court, is as follows: "You are instructed that the owner or tenant of a dwelling house may resist the entry thereof by another person or persons, but in so doing he has no right to kill unless it be rendered necessary to prevent a felonious destruction of his property, or to defend himself against loss of life or great bodily harm. If he kills in resisting such entry, when there is not a reasonable ground of apprehension of imminent danger to his person or property, you are instructed that he would be guilty of the crime of manslaughter; and if done with malice, express or implied, you are instructed that he would be guilty of the crime of murder."

Counsel for defendant complains that the jury were not told that the defendant had a right to kill, if it appeared to him, as a reasonably prudent man, to be necessary in order to prevent the forcible entry of his house or habitation and to prevent the commission of a felony therein; in other words, that the court ignored the doctrine of apparent danger. The last portion of the instruction refers thereto, but is stated in a negative way, and, as an abstract proposition of law, the instruction is not to be commended. We have, however, already stated that the defense in this case practically rests upon the question of self-defense, with no duty, however, on the defendant to retreat. In instruction No. 17 the jury were told that the defendant had the right to stand his ground and was not bound to retreat, if he in good faith believed, and had reasonable ground to believe, that the deceased intend

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fense, the doctrine of apparent danger was fully and clearly stated. We do not, accordingly, think that there was any prejudicial error in giving instruction No. 18.

4. The state produced testimony to show the condition and contents of the house in question immediately after the homicide, disclosing, among other things, as stated before, that there was a smell of illicitly distilled whisky therein. It was also shown that several days prior to the homicide some empty kegs and one keg of 5 gallons of moonshine whisky were found therein by police officers. This testimony was abjected to as tending to show a distinct crime, and not competent or relevant. An exception was taken to the rulings of the court admitting the testimony. The defendant claimed to be the lessee of the house and to have the right to defend and protect it. The jury were entitled to know all the circumstances surrounding the homicide, and we are inclined to think that the testimony above mentioned, and other similar testimony, tended to shed light thereon, premises at time and to aid the juof homicide. ry in determining

Evidence-of condition of

what a reasonable man, if placed in defendant's position, would or should have done at the time of the homicide.

5. The prosecuting attorney asked the defendant, who testified in his own behalf, as follows: "When was it you paid a fine for moonshining in Rawlins?" The question was objected to and the objection sustained. It is claimed that the asking of the question was misconduct. entitling the defendant to a new trial. There can be error of counsel no doubt that it was misconduct. The question assumed as an affirmative fact that the defendant had been guilty of a distinct

Witnesses

in asking questions.

crime not in the remotest degree connected with the crime for which the defendant was being tried. The supreme court of Pennsylvania, in Wagner v. Hazle Twp. 215 Pa. 219, 225, 64 Atl. 407, speaking of a similar situation, says: "When an attorney in the trial of a cause wilfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, it is the

plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the justice of a cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the jury, he fails to observe the duty required of him

an attorney, and his conduct should receive the condemnation of the court."

See also Com. v. Gibson, 275 Pa. 338, 119 Atl. 403; State v. Jones, 48 Mont. 505, 139 Pac. 441; 16 C. J. 892. Such misconduct cannot, however, be considered sufficient to require the granting of a new trial in all cases. It is said in 8 Cal. Jur. § 604: "Misconduct of the district attorney in asking improper questions is ground for reversal when it results in miscarriage of justice, but not otherwise."

In the case at bar, the question insinuated defendant's connection with "moonshining." Other testimony on that point was introduced, and, as we have seen, was not admitted improperly. The question now under consideration was, therefore, at most, cumulative in its effect. After careful consideration of the subject, we have concluded

(— Wyo. —, 224 Pac. 420.)

that, in view of all the evidence in

Appeal-nonprejudicial

error.

the case, it could not have had sufficient influence on

the jury so as to have materially affected their conclusions in reaching a verdict of manslaughter, included in the verdict actually returned, and that the error is not a ground for a new trial, in view of our holding herein that the verdict can stand only as to that charge.

6. We come then to the point as to what order to make herein. The rule laid down in 17 C. J. 370, is as follows: "The appellate court may reverse a judgment of a lower court as to part, and affirm as to part, where the legal part is severable from that which is illegal."

And again it is there said: "Where the errors committed can be cured by a judgment for a lower grade of the offense, the appellate court may reverse on the condition that the attorney for the state refuse to consent to the entry of such a judgment."

These questions are new in this jurisdiction, and we have given them careful consideration.

At

common law, no bills of exceptions were permitted in criminal cases, nor did the evidence or the rulings and opinions of the court form any part of the record. Schoeppe v. Com. 65 Pa. 51; Middleton v. Com. 2 Watts, 285; Vane's Case, 1 Lev. 68, 83 Eng. Reprint, 300. The question before us could, accordingly, never arise at common law; and hence, it would seem that this court has full authority under its general appellate jurisdiction to modify the judgment herein, since the legal part is severable from the illegal part, and to affirm the part that is legal and reverse the part that is illegal, unless we are forbidden to do so by statute. There was, according to some of the courts, a common-law rule of limited application, and which, as applied in some of the cases, led to a peculiar result. It is stated in Chitty, Crim. Law, 755, 2 Hawk. P. C. 655, and 4 Bl. Com. 393-all evidently based on

the statement of Sir Edward Coke, -that when the judgment is falsified or reversed, all former proceedings are absolutely set aside. This rule was applied in Rex v. Ellis, 5 Barn. & C. 395, 108 Eng. Reprint, 147, Rex v. Bourne, 7 Ad. & El. 58, 112 Eng. Reprint, 393, McDonald v. State, 45 Md. 90, 2 Am. Crim. Rep. 493, and a few others, in which it was held that, where the sentence was illegal, the proceedings should be reversed and the defendant discharged, without right to retry him. That rule was severely condemned in the case of Beale v. Com. 25 Pa. 11, where it was said: "The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner whose guilt is established by a regular verdict is to escape punishment altogether, because the court committed an error in passing the sentence."

In the case of Lougee v. State, 11 Ohio, 68, decided in 1841, the court, apparently without reference to a statute, affirmed a judgment in a criminal case, so far as legal, and reversed it so far as illegal. In State v. Bugbee, 22 Vt. 32, the defendant was indicted and convicted upon two counts. There was no evidence to sustain the conviction upon one of the counts, and the court, apparently without reference to any statute, reversed the case with direction to resentence upon one of the counts only. In the case of State v. Kennedy, 88 Mo. 341, the defendant was convicted of both burglary and larceny, with which the defendant was charged, apparently, in one count. The court upheld the court of appeals in reversing the judgment as to the burglary and affirming it as to the larceny. In the case of Simpson v. State, 56 Ark. 8, 19 S. W. 99, it appears, from the dissenting opinion therein, that thestatutes regulating criminal procedure in that state with respect to the point here involved were at that time similar to the statutes in force. in this state prior to 1901; the judgment in the case as to the conviction

and sentence for murder in the first degree was set aside and reduced to murder in the second degree. That, too, was done in Vance v. State, 70 Ark. 272, 287, 68 S. W. 37. In Darden v. State, 73 Ark. 315, 84 S. W. 507, the conviction for murder in the second degree was reduced to manslaughter. In the case of Jones v. State, 88 Ark. 579, 115 S. W. 166, a conviction for murder in the second degree was set aside, but the judgment affirmed as to manslaughter, unless the attorney general should elect to take a new trial, in which event the judgment should stand reversed. Similar action was taken in State v. McCormick, 27 Iowa, 402; Com. v. Lawless, 103 Mass. 425; People v. Farrell, 146 Mich. 264, 109 N. W. 440, and People v. O'Callaghan, 2 Idaho, 156, 9 Pac. 414, although a statute giving authority to modify a judgment is cited in three of the cases.

Turning now to the statutes of this state, we find that in 1869 the legislature provided for writs of error in criminal cases to be allowed on application to the supreme court or judge thereof. No provision was made as to what order should be made, upon final hearing, in cases of conviction for a felony not involving capital punishment. Sess. Laws 1869, p. 501, § 190, chap. 74. That section was amended by § 3, chap. 37, Sess. Laws of 1884, and it was provided that "upon hearing such writs of error, either in felonies or misdemeanors, the supreme court shall order the prisoner to be discharged, a new trial to be had, or if the judgment against the defendant be affirmed, the supreme court shall order the original judgment to be enforced."

Thus the law stood until 1901, when provision for a writ of error, previously allowed only on application, for good cause shown, was left out, and the legislature provided: "In all criminal cases after final judgment and within one year after the rendition of the judgment, proceedings to vacate, modify or annul such judgment, may be begun in the supreme court by petition in error

in the same manner as is provided for taking civil cases to the supreme court under the laws of this state." Sess. Laws 1901, chap. 63; Wyo. Comp. Stat. 1920, § 7589.

Here was clearly evinced a purpose to grant the court power to modify judgments in criminal cases. The quoted part of the Law of 1869, amended in 1884, as above set forth, was at the same time amended to read as follows: "And upon the hearing of such case and the determination thereof, the supreme court shall order the prisoner to be discharged, a new trial to be had, or the original judgment to be enforced, as the nature of the case may require."

Sess. Laws 1901, § 3, chap. 63; Comp. Stat. 1920, § 7591. The last clause, "as the nature of the case may require," may be construed to refer only to one of three things, namely that the court may (1) discharge the defendant, (2) grant a new trial, or (3) enforce the original judgment as, and only as, it was rendered in the lower court. This construction is, however, not commensurate with the right to take the appeal as granted by the same act of legislation (§ 1, chap. 63, Sess. Laws 1901, now § 7589, Wyo. Comp. Stat. 1920), and would leave the word "modify" in that section without any meaning whatever. Section 7591, on the other hand, may be construed to mean that this court has power to order "the original judgment to be enforced, as the nature of the case may require;" that is to say, to the extent that the justice of the case may require. This construction gives full force to the word "modify" in § 7589, supra, and must, accordingly, be the construction that should be adopted, giving this court -right to full power to modi- modify confy any judgment. This power should, of course, not be exercised where an error in the record is one which had deprived a defendant of a fair trial throughout, prejudicially affecting the conviction for any crime at all, and it may well be that the power can be exercised only in a comparatively few

viction.

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