State v. . Elwood

Rbade, J. It was admitted for the prisoner, and it was *195 also clearly proved on tbe trial, that he killed the deceased. And it was also admitted and proved that the deceased gave the prisoner no provocation. Why, then, is not the prisoner guilty of murder ? The prisoner puts his defence upon the ground of accident. “ That the prisoner was showing the deceased the pistol, and either to alarm him, or show him how the cartridge could be thrown out, brought the pistol round and it accidentally fired.” His Honor charged the jury that there was no evidence to support this defence. And whether there was or not, is the only question before us. There was but one witness who testified as to the immediate circumstances of the killing. He was standing in the yard, and the prisoner and the deceased came up to him; and the prisoner pulled out a box of cartridges and said to the deceased, “ Don’t you want a dose of these ?” Deceased laughed, and offered to take one ; and prisoner said, “ No, you can’t have these; but I have one for you; step out and I will give it to yon.” Prisoner walked immediately oft', and deceased followed. Prisoner looked back over his shoulder and said to the deceased, “Stop, you are_too close;” and immediately jerked out a pistol, wheeled around and fired quickly, and shot the deceased through the head and killed him. We have looked earnestly for some feature of the transaction that would tend to favor the theory of the defence, “ that the prisoner was just showing the deceased his pistol, and how the cartridge could be thrown out; and that it fired accidentally.” Every circumstance disproves it. He had not said a word about showing the deceased his pistol. He had shown his box of cartridges, and asked the significant question, “Don’t you want a dose ?” And the deceased offered to take one. Prisoner said, “ No, not these; I have one for you; come out and I will give it to you.” Why not give it to him there ? Why want to step aside ? Why not show his pistol then and there ? Why step aside ? If he wanted to show his pistol and explain it, why jerk it out, and wheel&viá fire quickly ? If his object *196 was to show the pistol, or the cartridge, why say “ Stop, yon are too close ?” There not being one' single circumstance in the immediate transaction to j ustify, excuse or mitigate the homicide, his Honor could do ho other than tell the jury it was murder. Although that may be true of the immediate transaction, yet the prisoner says that there were circumstances before and after the transaction which support his theory. The circumstances relied on are, first, that they were upon friendly terms before the transaction ; secondly, that he manifested sorrow immediately after the transaction; and, thirdly, that he had an opportunity to escape and did not do it. And there was evidence tending to prove these circumstances; so that we must take them to have been proved. And we must leave out of view the evidence that the prisoner had that morning cursed the deceased and threatened to shoot him, and charged him with having thrown a rock at him the night before and hit him. We must leave that out, and take the circumstances relied on by the prisoner; because his Honor held that, taking the circumstances relied on by the prisoner to be true, they amounted to nothing. Where the immediate circumstances of the killing are such as to make it of doubtful character, then it is proper to look to circumstances farther off to enable us to solve the doubt. But, if without the slightest justification, excuse or provocation occurring at the time, A takes a pistol from his pocket and shoots B and kills him, how is it possible that any circumstances further off can mitigate the crime? If the prisoner says that he and the deceased had always been friendly, it only makes it the worse for him to have killed his friend. If he says they were enemies, it tends to show that he killed him of malice. If he regrets it, repentance may secure pardon, but cannot remove guilt. If he does not attempt to escape, it relieves him from that slight confirmatory evidence of guilt, but it does not change or explain the transaction. It is said that, as it is settled that an attempt to escape is evidence of *197 guilt, so the converse ought to*be true, and not attempting to escape is evidence of innocence. But that is sophistical. It may be proved against a prisoner that he acknowledged his guilt, but he cannot prove as evidence of his innocence that he denied his guilt. Much less can he rely upon the fact that he shut his mouth and said nothing. A prisoner cannot manu facture testimony for himself after the event, either by words or acts. As neither of these circumstances by itself amounts to anything, do they when all put together ? A and B are friends. A, without any apparent excuse, justification or provocation, takes a pistol from his pocket and shoots B and kills him ; expresses his regret, but makes no explanation, and does not flee. Is it possible to state a plainer case of murder ? The prisoner says that the fact that there was no cause for it, is some evidence that he did not do it of malice. But the rule is, and the sacredness of human life requires that the rule should be, precisely the contrary. "Where the killing is without cause — without provocation — then malice is implied. A man is no more excused for killing his friend than he is for killing his enemy. He that sheddeth man’s blood by man shall Ms blood be'shed. But the prisoner insists that if he killed him without provocation, that fact shows that he did not kill him of malice. And it is clear that if he did kill him upon sufficient provocation, that rebuts malice. And so it comes to this, that a killing, with or without provocation, is not murder ! We have considered the case as if the prisoner had proved all that he offered to prove, and there is nothing to sustain his theory of accident, or to rebut the presumption of malice. But that is a very favorable view for the prisoner, because there was evidence that he had that morning charged the deceased with having thrown a rock at him the night before and hit him ; and he cursed the deceased and threatened to shoot him. At the same time drawing the pistol and holding it so that the deceased could not see it. There is no error. This will be certified to the end, &c. Pee Cueiam. ' Judgment affirmed.