People v. Cismadija

Brooke, J. (after stating the facts). Error is assigned upon rulings as to the admissibility of evidence [213] and upon the charge and refusals to charge. We will consider those only relating to the charge. The learned trial judge premised his charge by a lengthy and correct definition of the major offense with which the respondent stood charged. He then added: “ I read this for the purpose of showing you that, under the particular charge in the information, that if death had ensued, if this man had died from the effect of the shots, and all the other ingredients of the crime were there, that the death of that man would have been murder and not manslaughter, as I will call your attention to later on.” It is, of course, true that, if the evidence in the case was such as to supply the necessary “ingredients” of murder, then, in the event of the death of the person assaulted, a murder has been committed. The difficulty with .this instruction is that the record is, in our opinion, absolutely barren of evidence which would have supported a verdict of murder, in case Goller had died from the effects of his wound. Here was a wordy dispute over a trivial matter, followed by a sudden affray in which respondent was first violently assaulted by the complaining witness. Had death ensued under the circumstances disclosed by the record in this case, the greatest crime of which respondent could have been convicted would have been manslaughter. He was clearly entitled to defend himself against assault of Goller, who, after ordering him to leave, threw him to the floor and into his bedroom, instead of towards the outside exit, and attacked him with a chair. The only question in the case is whether respondent in defending himself used unnecessary and unlawful force. That he did so might be inferred from his use of a deadly weapon, but if this inference could properly be drawn by the jury there is still lacking in the case evidence of the necessary elements of the crime of which he stands convicted. Again the court charged: “ Malice is either express or implied. Express malice is when one, with a sedate and deliberate mind and formed [214] design, doth kill another, which formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. Neither shall he be guilty of a less crime who kills another in consequence of such a wilful act as shows him to be an enemy to mankind in general, as, going deliberately with a horse used to strike, or discharging a gun amongst a multitude of people. So, if a man resolve to kill the next person he meets, and do kill him, it is murder, although he knew him not, for it is universal malice. And it may be necessary here to observe that no provocation, however great, will extenuate or justify a homicide, where there is evidence of express malice. And in many cases where no malice is expressed or openly indicated the law will imply it. Thus, where a man wilfully poisons another, though no particular enmity can be proved. So if a man kill another suddenly, without any or without a considerable provocation, or if he kill an officer in the legal execution of his duty, or if, intending to do another felony, he undesignedly kill a man, in all these cases the law implies malice, and the offense is murder.” This is no doubt a correct exposition of the law in a case in which it could properly be applied, but its pertinence in the case at bar is not apprehended. It may be, too, as claimed by respondent’s counsel, that the instruction that, “discharging a gun amongst a multitude of people” would afford the necessary implication of malice, misled the jury into believing that, merely because the gun was discharged in a room containing eight or ten people, the respondent must be convicted of the crime charged. Error is assigned upon that part of the charge referring to the alleged confession of the respondent, made to the officers at the time of his voluntary surrender. We think the court erred in characterizing the statements there made as a confession. It is true respondent then admitted his participation in the affray, but he claimed to have acted in self-defense, and that the weapon was accidentally discharged. If true, and believed by the jury, he should [215] have been acquitted. In any view we may take of it, it was not a confession of guilt. The court further charged: “ There has been evidence introduced to show that immediately after the trouble the respondent fled from the scene, and some time during the night departed and concealed himself for two weeks or more, and until such time as'the evidence shows he voluntarily appeared at the jail and gave himself up. The court instructs you that you have a right to consider such flight and subsequent concealment of respondent as evidence of his guilt.” This was an erroneous instruction. Plight from the scene of a tragedy may be quite as consistent with innocence as with guilt. One, who in self-defense kills or maims another, may through ignorance of the law or through panic flee from the scene of his act, and yet be perfectly innocent. We think it would be a dangerous rule which would permit the jury to consider flight as substantive evidence of guilt. The court charged further: “ The question is, If Sam Goller had been killed at the time of the alleged assault, would Joe Oismadija, the defendant, have been guilty of murder ? In order to find him guilty of murder, the people would have to prove that he shot the complaining witness with malice aforethought, and with intent to kill the complaining witness, and the people would also have to show that the killing was premeditated by the defendant, and you could not find the defendant guilty if there was evidence to convince you beyond a reasonable doubt that he did not premeditate the crime, or that he did not intend to kill when the shots were fired by him.” This was an obvious error, as it placed the burden of proof upon the respondent to convince the jury beyond a reasonable doubt that he did not premeditate the crime. The language of the court was taken from a request prepared by respondent’s counsel, but that fact does not cure the error. Respondent should not suffer for "the legal mistakes of his counsel. The reprehensible habit of carrying [216] deadly weapons, which is too common with a certain class of our citizens, particularly those of foreign birth, is a fecund cause of trouble. To this habit respondent doubtless owes the plight in which he finds himself. Had he been unarmed, the affair would probably never have assumed a more serious aspect than simple assault and battery upon either side. For the errors pointed out, the judgment is reversed, the respondent remanded to the custody of the sheriff of Kalamazoo county, and a new trial ordered. Bird, Moore, McAlvay, and Blair, JJ., concurred.