People v. Kernaghan

McFarland, J. The jury found the appellant guilty of murder in the first degree, and assigned the punishment of death. JSe now- contends for a reversal of the judgment upon the grounds that the court erroneously instructed the jury,,first, as to reasonable doubt; second, as to manslaughter; third, as to excusable homicide; and fourth, as to insanity. The difficulties in this case arise mostly out of the attempt-of the learned judge of the court below to employ.new and unusual forms of speech to state old principles, the proper expression of which has long since settled into'wéll-considered and well-chosen language. For instance, the definition—or rather the description—of “ reasonáble doubt ” given by Chief Justice Shaw in the Webster case has been adopted by this court and by nearly all American courts, as a statement of that mental condition sufficiently accurate. Therefore, where a nisi prius ■ court .had given the language used by Chief Justice Shaw, and had confined itself to such language, we would ‘be slow to reverse the case, although other instructions upon the subject not -objectionable had been asked by defendant and had been refused. But in the case at bar, the court, in addition to a correct statement of the law concerning reasonable doubt, taken substantially from the Webster case, used other expressions which are objectionable; and the question to be determined is, Does it .appear from the whole charge considered as an entirety that the defendant was .not injured by that part of it which., considered by itself, might be admitted to be erroneous. (People v. Doyell, 48 Cal. 93.) For the solemn verdict of twelve men rendered upon their oaths will not be set aside for a mere “ slip of the judge” in charging them, when no prejudicial injury was done thereby. [611] The first objection to the charge on this subject is to the following language which constitutes the latter clause of a sentence: “Your minds should be able to rest reasonably satisfied of the guilt of the defendant before a verdict of that character is given.” “ Reasonably satisfied” as here used is undoubtedly an unfortunate expression. If it had stood alone, it might possibly have been understood by the jury as meaning “ satisfied by a preponderance of evidence.” But how could that be when the court had repeatedly told them that they must be convinced of defendant’s guilt beyond a reasonable doubt, and when, in a former part of the very sentence in which the objectionable words occur, it had said that "the probability of guilt outweighing the probability of innocence ” was not sufficient to warrant a conviction. Keeping the whole charge in view, the jury could not have understood the words “ reasonably satisfied ” other than as an equivalent of the phrase “ satisfied beyond a reasonable doubt.” We do not think, therefore, that this objection to the charge should work a reversal of the judgment. The other main objection on this point is directed to the following language, which constitutes the first clause of a sentence: " On the other hand, however, mere probabilities of innocence, or doubts, however reasonable, which beset some minds on all occasions, should not prevent such a verdict.” To this language, standing by itself, we can attach no definite meaning, and it is not to be presumed that the jury could, or that they did, attach a meaning to it prejudicial to defendant. The latter part of the sentence is as follows: “But if the whole testimony in the case produces in your minds this degree of conviction of the guilt of the defendant,— that is, satisfies you beyond a reasonable doubt of his-guilt, it is your duty to say so by your verdict; if it does not, it is your duty to say not guilty.” It must be remembered that the court in other parts [612] of its charge had fully and correctly stated the law on the subject of reasonable doubt. Among other things, having said that the doubt was not sufficient if merely “ chimerical or based on groundless conjectures,” it correctly defined reasonable doubt as “ that state of the case which after an entire consideration and comparison of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” The practical administration of justice should not be allowed to depend too much upon nice questions in philology. In a case like the one at bar, the real question should be, Was the correct exposition of the law given in the main body of the charge so qualified by the injudicious expressions complained of as to impair its truthfulness as a whole ? We think that this question put in this case upon the point under discussion should be answered in the negative; although, of course, we cannot commend all that was said in the instructions. The charge of the court on the subject of manslaughter is correct, with the exception of the use of the words “ not intentional.” After giving a proper definition of manslaughter, and saying that “ the distinguishing feature between murder and manslaughter is the presence or absence of malice,” the court adds as follows: “In other words, gentlemen, manslaughter is a homicide not excusable, not justifiable, but yet not intentional.” The latter part of this language is, in one sense, inconsistent with former decisions of this court. It has been held by some eminent jurists that the sudden, irresistible passion, overcoming' the reason and deadening the conscience to the voice of humanity, which reduces unlawful homicide to manslaughter, is inconsistent with the notion of intention. And while this court has said in People v. Freel, 48 Cal. 436, that the intent to kill may be present in manslaughter, yet in the same case it said that “ the law out of forbearance for the weakness of [613] human nature will disregard the actual intent.” In People v. Doyell, 48 Cal. 96, this court uses the same expression; and in discussing the distinction between murder in the second degree and manslaughter says: “In the former cases the slayer is presumed to be actuated by an intent which may not exist; in the latter, out of forbearance for the weakness of human nature, the slayer is presumed not to be actuated by an intent to hill, although such intent may, in fact, exist.” Now, the distinction between no intent at all and an intent which the law “ disregards,” and by which the slayer is “ presumed not to be actuated,” is a very slight basis for the reversal of a judgment. And the distinction becomes less apparent when we consider that one of the definitions of malice given in section 7 of the Penal Code is, “An intent to do a wrongful act established either by proof or presumption of law”; and that in section 188 practically the same definition is given, although in dividing malice into express and implied, the former is described as existing when the “ intention ” to kill is “ manifested ” by direct proof, and in the latter as resting on a “ presumption of law.” Indeed, the primary and generally received legal definition of malice includes the notion of intent. Some of the common definitions are “the doing of a wrongful act intentionally without just cause or excuse”; a “conscious violation of law”; “ the intent from which flows any unlawful and injurious act committed without legal justification.” (2 Bouv. Law Diet., p. 33, and cases there cited.) It is difficult, therefore, to reconcile the absence of malice with the présence of an intent to kill; and we would hesitate to set aside a verdict on such a delicate distinction, even in a case where it was apparent that the jury may have had doubts which involved the boundary line between manslaughter and murder in the second degree. But in the case at bar there were evidently no such doubts. The evidence tending to reduce the crime to manslaughter was of the very slight [614] est character; and the jury, passing over murder in the second degree, not only found the defendant guilty of murder in the first degree, but imposed the extreme penalty of death, when it was in their discretion to assign the punishment of imprisonment for life. Under these circumstances, we are of the opinion that the judgment should not be reversed for the alleged error here under discussion. With respect to the charge of the court on the subjects of excusable homicide and insanity, we deem it necessary to say only that in our opinion it was not erroneous. This court has frequently warned the judges of t-rial courts against the dangers of lengthy and ill-considered instructions to juries in criminal cases. We here repeat the admonition,—with little hope, however, that it will be heeded. Judgment and order denying a new trial affirmed. Paterson, J., concurred. Searls, C. J., and McKinstby, J., concurred in the judgment.