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State o. Fiske.
charge the jury as follows—“ The accused is charged with assault, with malice aforethought, with intent to commit murder. In order to sustain this charge every element needed to convict of the crime of murder must exist and be proved, except the death of the assaulted party. There must be malice aforethought, premeditation, deliberation, and an intent to kill. If any of these elements are not proved the accused cannot be convicted of assault with intent to murder. With deliberation' means, not hastily or rashly, but coolly and with careful consideration. With premeditation means with previous design formed. Unless the accused did this cutting coolly, deliberately, and with a premeditated intent to take the lives of either Clark or Nolan, he cannot be convicted of assault with intent to murder.”
The court declined to charge the jury fully in accordance with this request, but, after referring to some other matters, charged them as follows :—“ But the State goes further, and has alleged another element of criminality in this case—the element of malice, which is not necessary in the offense known as assault with intent to kill. And if the evidence justifies you in finding that the element of malice existed in this case, beyond a reasonable doubt, as well as the assault with intent to kill, then the State will have made out the full offense as charged. I bave to say to you that no deliberation or previous design or premeditation is necessary to constitute this offense of an assault with intent to kill and murder with malice aforethought. There are necessary only the assault, the intent to kill, and the malice aforethought, no deliberation being necessary.”
A part of this charge, if taken by itself, was liable to be misunderstood. For instance, when the jury were told that if the element of malice existed, without the qualifying word “aforethought,” it was sufficient, they might, unless that was considered in connection with all that was said on that subject, have inferred that if simple malice accompanied the assault it was sufficient. But taken in connection with what immediately follows such an inference was clearly excluded. While being told that no deliberation, previous design or
State v. Fiske.
premeditation was necessary to constitute the offense charged, they were also distinctly told that malice aforethought was essential.
The word “aforethought” is defined in the Century Dictionary as “ Thought of beforehand; premeditated; prepense.” In Webster's International Dictionary, “ Premeditated; prepense."
Malice aforethought is defined, in the Century Dictionary—“ Actual malice, particularly in case of homicide." In Webster — “Malice previously and deliberately entertained.” Thus it appears that the adjective “aforethought" describes, not the intent to take life, but the malice; and that malice must exist, must be previously and deliberately entertained, when the purpose to take life is formed, and must co-operate with the blow in producing death to constitute murder. In understanding malice aforethought malice must not be confounded with the intent to take life. It is the malice that must previously exist or be deliberately entertained; the intent may spring into existence and be immediately followed by the fatal blow; and that at common law is murder, and under our statute is murder in the second degree. To constitute murder in the first degree the criminal intent must be conceived and carried into effect, so that the killing may be said to be “ willful, deliberate and premeditated.”
Counsel for the accused asked the court to charge the jury that “ unless the accused did this cutting coolly, deliberately, and with a premeditated intent to take the lives of either Clark or Nolan, he cannot be convicted of assault with intent to murder. In determining this question the jury may take into consideration the evidence as to the prisoner's partial intoxication. While intoxication does not excuse a man for crime, it is proper to take it into account in determining the degree of the crime, and as tending to show whether the accused was capable of deliberation."
The court properly refused to charge as thus requested. The question whether the accused was guilty of an attempt to commit murder in the first degree was practically eliminated. The sole question was whether the attempt was to commit murder in the second degree, or murder which was
State v. Fiske.
not“ willful, deliberate and premeditated.” Indeed no complaint was made of the refusal to charge as requested, but the complaint is of the charge as it was given: This was as follows: " Intoxication is no defense or excuse for crime, but in certain cases, where a specific intent is an element in the offense, the fact of intoxication, if shown, is to be considered. If it appears from the evidence that the prisoner was intoxicated at the time, and if you find that his state of intoxication was such that he had so far lost his intelligence and his reason and faculties that you have a reasonable doubt whether he was able to form and have a purpose to kill, or to know what he was doing, then you should find him not guilty of intent to kill."
Whatever may be the law on this subject in other jurisdictions, the charge was quite as favorable to the accused as he was entitled to under the law of this state. State v. Johnson, 41 Conn., 584. The accused has no grievance in this respect.
The accused offered himself as a witness. The court said to the jury—“ He is to be regarded by you as every other witness is to be regarded. You are to take into consideration his appearance, his manner of testifying, the reasonableness of his story, and, above all, you are to take into consideration the fact that he is the accused in the case ; and, taking those facts into consideration, you are to give to his statements in court, or any statements made by him out of court, such effect and such force as you think they justly should have."
The defendant objects to this charge on the ground that the court, by the use of the words “above all,” unduly emphasized the fact that he had the interest of an accused party. We see no ground for this complaint. The accused certainly was not entitled to have his evidence regarded as the evidence of a disinterested witness. We cannot see that the judge could have been understood as intending anything more than that.
There is no error in the judgment complained of.
In this opinion the other judges concurred.
Barber's Appeal from Probate.
MARIA M. BARBER AND OTHERS' APPEAL FROM PROBATE.
63 393 68 243
63 393 71 233
Hartford Dist., Oct. T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE,
FENN and BALDWIN, Js.
Where the proponents of a will have introduced formal proof of the capac
ity of the testator, their burden is discharged, and that of proving in
capacity rests on the party alleging it. The law presumes every man sane until the contrary is shown, and this
presumption applies to the case of a testator whose incapacity is alleged. And especially does thė burden of proof lie upon the contestants of a will
where the incapacity alleged is an insane delusion upon a single point,
while the testator was otherwise of sound mind. The question on the whole case would be, whether the evidence of the con
testants sufficiently preponderated over that of the proponents, including both the testimony of the attesting witnesses and the rebutting evidence, to overcome the presumption of sanity which constituted
the proponents' primâ facie case. Where an expert witness is asked his opinion upon certain facts proved,
the weight of authority is that the facts should be stated in the question. So far as any discretion in the matter is to be allowed the presiding judge.
it is limited and must be used sparingly. The question should present such assumptions of facts, and such only, as
counsel may fairly clain that the evidence in the case tends to justify, and while it may not be improper because it includes only a part of the facts in evidence, it would be so if, by reason of such omission, it failed to present the facts which it did include in their just and true rela
tion. Certain diaries kept by a testator were held to be admissible to prove his
mental capacity, while not admissible as proof of the truth of the en
tries. The laying in of a large number of letters in a mass, unread, for the jury
to examine or not as they should feel inclined, held to be improper. Where letters of a testator were read to the jury for the purpose of show
ing his mental capacity, it was held that the letters received by him and to which his were replies, might be read to the jury, that they might be better able to judge of the character of his own letters; and the memoranda of their dates made by him on the letters were held to be sufficient primâ facie evidence that they were what they purported to be, the question not being as to the truth of their statements or as to
their authenticity. It is provided by Gen. Statutes, $ 1094, that “in actions by or against the
representatives of deceased persons memoranda of the deceased, relevant to the matter in issue, inay be received as evidence.” Held that an appeal from the probate of a will is not an “action” within the meaning of the statute,
(Argued October 5th-decided October 25th, 1893.]
Barber's Appeal from Probate.
APPEAL from a probate decree approving the will of James S. Barber; taken to the Superior Court in Hartford County, and tried to the jury before Robinson, J. Verdict setting aside the will, and appeal by the original appellees. The case is fully stated in the opinion.
W. C. Case and W. S. Case, with whom was T. C. Waterous, for the appellants, (original appellees.)
C. H. Briscoe and A. F. Eggleston, with whom was W. J. McConville, for the appellees, (original appellants.)
FENN, J. An appeal having been taken to the Superior Court from an order and decree of the court of probate for the district of East Windsor proving and approving an instrument purporting to be the last will and testament of one James S. Barber, disposing of a considerable estate, on the trial to the jury the validity of the instrument was contested, mainly on the ground that the alleged testator was not of sound and disposing mind and memory at the time of its . execution. The jury returned a verdict setting aside the will, which was accepted by the court and judgment rendered thereon. From that judgment an appeal was taken to this court and several reasons of appeal assigned.
We will consider first, as of the greatest general importance, the exceptions to the charge to the jury. Upon the trial the proponents and present appellants, having introduced the alleged will, also introduced the evidence of the two surviving witnesses to the will, tending to prove, and which they claimed did prove, its due execution, and that the testator was of soud and disposing mind and memory at that time. They then rested, and the contestants went forward and introduced evidence to show the want of capacity, mainly, as was claimed, because of the existence of an insane delusion existing in the mind of said Barber in reference to the paternity of his children. This was met by evidence offered by the proponents in rebuttal. The court, in the course of its somewhat lengthy charge to the jury, made