Commonwealth v. Blackwell

JUDGE BENNETT delivered the opinion op the court. The appellee was indicted in the Webster Circuit Court, charged with the crime of murdering — Bodord. The appellee was convicted of the crime of manslaughter; he does not appeal from the judgment of conviction, but the Commonwealth appeals in order to have this court rule upon the correctness of the third instruction, in reference to manslaughter. The court first, in proper form, instructed the jury as to the law of murder, and the proof clearly authorized that instruction. The court then gave [310] instruction No. 3, in reference to manslaughter. In that instruction the crime of manslaughter is not defined. The jury is told that “ if they have a reasonable doubt as to whether or not the killing was done with malice aforethought, they will find the defendant guilty of manslaughter.” The instruction leaves the jury to determine, as matter of law, what is necessary to constitute the crime of manslaughter, except they are told that malice is not an ingredient thereof. The instruction is erroneous in not giving the jury the legal definition of the crime of manslaughter. This opinion is ordered to be certified.