The opinion of the court was delivered by: Duffy
COURT'S CHARGE TO THE JURY
DUFFY, President Judge, charging the jury:
Members of the jury, it is my duty as a Judge to instruct you in the law as it applies to this case and it is your duty as jurors to follow the law as I state it to you. It is your exclusive province to determine the facts of the case and to consider and weigh the evidence for that purpose. The authority vested in you is not an arbitrary power; it must be exercised with sincere judgment, with sound discretion, and in accordance with the rules of law I state to you.
If, in these instructions, any rule, direction or idea be stated in various ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason you are not to single out any certain sentence, or any individual point or instruction and ignore the others. You are to consider all of these instructions as a whole and to regard each in the light of all the others.
At times during the trial I have passed upon the question of whether or not certain offered evidence might be admitted. You are not concerned with the reasons for such rulings, and you are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law. In admitting evidence to which an objection was made I did not determine what weight should be given to that evidence, nor did I pass upon the credibility of the witnesses. Any offer of evidence that I rejected you must not consider. As to any question to which an objection was sustained, you must not speculate upon what the answer might have been, nor are you concerned with the reason for the objection.
The defendant Thomas H. Winsett has been indicted on a charge of murder in the first degree. It is alleged that on October 17, 1963, he killed Robert A. Paris with express malice aforethought.
The defendants Wilbert A. Weekley and Edward J. Mayerhofer have been indicted on charges of accomplice to murder in the first degree. It is alleged that on October 17, 1963, they aided and abetted Thomas H. Winsett to kill Robert A. Paris with express malice aforethought.
All three defendants have been indicted on a charge of conspiracy to kill Robert A. Paris with express malice aforethought.
The fact that the Grand Jury indicted the defendants is not to be considered by you as evidence of their guilt of any crime. Whether they are or are not guilty is for you to determine solely from the evidence which has been presented during the trial. If your recollection of the evidence differs from anything said about it by counsel, or by the Court, you must be guided entirely by your own recollection. The determination of the true facts and the drawing of any inferences from the proven facts are matters solely within your province.
Counts II, III and IV of the indictment are based upon a statute of this State which provides as follows: *fn1
"Whoever commits the crime of murder with express malice aforethought * * * is guilty of murder in the first degree and of a felony, and shall suffer death."
Another statute of this State provides as follows: *fn2
"Whoever commits the crime of murder, other than murder in the first degree, is guilty of murder in the second degree and of a felony."
The State has produced evidence from which it contends that the defendant Winsett, without justification, killed Robert A. Paris on October 17, 1963, under circumstances which amounted to first degree murder. The State also contends that its evidence shows that the defendants Weekley and Mayerhofer aided and abetted the killing of Robert A. Paris on October 17, 1963, under circumstances which amounted to first degree murder. The State also argues that its evidence shows that all three defendants conspired to kill the deceased with express malice aforethought.
The defendants, by their pleas of not guilty, have placed directly in issue every essential element of the State's case against them. Each essential element must be proven by the State to your satisfaction beyond a reasonable doubt. The defendants contend that they are not guilty of any charge. And as to homicide, they say that the shot which killed the deceased was fired in self-defense.
While the charges involve murder in the first degree, it is possible, under these charges, for the jury to make any one of four findings, as the evidence shall warrant:
(1) Murder in the first degree; or
(2) Murder in the second degree; or
(4) Not guilty of any crime.
You must keep in mind that there are three defendants in this case. The law that I state to you is applicable to the charges against each defendant, except as I otherwise indicate. You must weigh and consider the evidence against each defendant in light of the law as I state it. During the trial I admitted certain evidence against each defendant. That evidence is, of course, applicable only to the charges against the particular defendant or defendants as to whom it was admitted. It is not evidence against any other defendant and may not be considered by you in connection with the charges against any other defendant.
Homicide is the killing of one human being by another. Felonious or wrongful homicide is divided into three classes: murder in the first degree, murder in the second degree, and manslaughter. To constitute murder either of the first or the second degree, the element of malice must be present; without malice there can be no murder, and with malice there can be no manslaughter.
Malice is the great test or criterion of murder. It is not easy to explain clearly what is meant in law by "malice." In common acceptance the term means hatred, spite, or ill will against a person. But in its legal sense, the sense in which it is used with respect to the crime of murder, malice is more comprehensive than mere personal hatred, spite, or ill will by one person against another. While malice includes these things, it also comprehends and includes all acts done from an unlawful and wrongful motive; to put it another way, malice includes all acts done voluntarily and with a wilful disregard for the rights and safety of others. Malice, therefore, is a condition of mind or heart, existing at the commission of the fatal act; it includes that general reckless disregard of human life which proceeds from a heart and mind void of a just sense of social duty and fatally bent on mischief.
In murder of the first degree the malice must be express or actual malice; in murder of the second degree the malice is inferred or implied from the facts proven.
Express or actual malice, as the term is used in defining murder in the first degree, exists when the killing of another is done with a sedate, deliberate mind and a formed design to kill or to do great bodily harm. Each of these elements must be proved by external circumstances, that is, by circumstances other than the mere fact of killing. These may be shown by something the accused did or said before the killing, or by other circumstances which indicate that the accused acted with a sedate and deliberate mind which resulted in the intention to kill, or to do great bodily harm; each element, together with malice, must be present and proved by the State beyond a reasonable doubt.
Implied or constructive malice must be shown by the character of the fatal attack and the surrounding circumstances. Where there is proved no fact or circumstance indicating that the accused acted with a sedate and deliberate mind, yet where the fatal act was unlawful and cruel and voluntarily committed, without adequate provocation, and in circumstances showing a wicked indifference to human life or with a reckless disregard of the consequences, the law implies or infers malice.
Murder of the first degree, therefore, is where one person kills another with express or actual malice aforethought; that is, with a sedate, deliberate mind and a formed design to kill or do great bodily harm. Such sedate, deliberate mind, resulting in the intention to kill or to do great bodily harm, may be shown in various ways; it may be shown, for example, by lying in wait, antecedent threats or menaces, proof of hatred, ill will, spite or jealousy against the intended victim, or by plans or schemes to do great bodily harm.
No specific length of time is necessary to make an act a deliberate act. A deliberate act may be very sudden. If the accused, before committing the fatal act, had made up his mind to kill the intended victim, even though his design to kill be but the conception and intention of a moment, it is as deliberate in law as if it had been the design of hours, and if the accused had time for reflection and thought, and did think, and did then intend to kill, and did kill, it is just as much a case of deliberate premeditated killing as if he had intended it for a length of time.
Murder in the second degree is where the killing is done, not with express malice, but, rather, with implied or constructive malice, that is, where the malice is inferred from facts actually proved. Malice is implied by law from every intentional cruel act committed by one person against another, however sudden the act may be. The law considers that he who commits a cruel act voluntarily, does it maliciously. Every person is presumed to contemplate and intend the natural and ordinary consequences of his own voluntary act; if the act, voluntarily and wilfully done, has a direct tendency to destroy the life of another, the natural Conclusion from the fact is that the destruction of the person's life was intended. For example, the intentional use of a deadly weapon upon the body of another, without sufficient cause or provocation, is sufficient to warrant the inference of malice.
Murder in the second degree, therefore, is where the killing is done without the premeditation or deliberate mind required to make the act murder in the first degree, but nevertheless is done without justification or excuse, and without adequate provocation, and with a wicked and depraved heart, or with a cruel and wicked indifference to human life. In such case the law implies malice and renders it incumbent upon the accused to show by evidence that the killing was not in fact malicious, or that there were circumstances of mitigation, extenuation, justification or excuse.
Manslaughter is where one person unlawfully kills another, without malice in his mind or heart; the absence of malice is the feature which distinguishes manslaughter from murder. For example, where one in a sudden fight, in the heat of blood, or in a gust or transport of passion, without time for reflection or for the passions to cool, kills another, such killing amounts to manslaughter.
This is because the law makes allowance for human frailty or infirmity under great and sudden provocation. But in order to reduce the crime from murder to manslaughter, where a dangerous or deadly weapon is used, the provocation must be great; it must be so great as to produce such an actual frenzy of the mind as to render the accused, for the time being, utterly deaf to the voice of reason. Provocation, as meant in law, must be something which the slayer feels at the instant of the fatal act, and he must act under the sting of that provocation and resent it at once without delay or time for thought or reflection; if, between the provocation and the fatal act, there is time for thought or reflection, or for passion to subside and blood to cool, the provocation will not avail.
Therefore, while murder proceeds from a wicked and depraved spirit, and is characterized by malice, manslaughter results, not from malice, but from unpremeditated and unreflecting passion.
There is another rule which has application here. It is the law that all persons who join together with a common intent and purpose to commit an unlawful act which, in itself, makes it not improbable that a crime not specifically agreed upon in advance might be committed, are responsible equally as principals for the commission of such an incidental or consequential crime, whenever the second crime is one in furtherance of or in aid to the originally contemplated unlawful act. *fn3
If you find that the defendants, or any two or more of them, joined together with a common intent and purpose to steal television sets, and that this was done under circumstances which made it not improbable that a killing of a human being with implied or constructive malice might occur, or that a manslaughter might occur, then such defendants are responsible under the respective counts of the indictment for murder in the second degree or manslaughter or as accomplices to either of those crimes, as you find the evidence to be, provided that such homicide was done in furtherance of, or in aid to, the stealing of television sets.
I turn now to the individual defendants. If you find that the defendant Winsett fired the weapon with the projectile which killed Robert A. Paris and that when he did so it was with express malice aforethought, that is, in pursuance of a sedate, deliberate mind and with a formed intent to take his life or to do him great bodily harm, then your verdict should be guilty of murder in the first degree. *fn4 If you find such killing was with implied rather than express malice, your verdict should be guilty of murder in the second degree; and if you find it to have been an unlawful killing without malice, then your verdict should be guilty of manslaughter; if you find such killing was not unlawful, then your verdict should be not guilty.
A defense in this case is that the defendant Winsett fired the shot or shots in the necessary defense of his own life or for the purpose of preventing great bodily harm to himself. This requires a consideration of the rights and duties of the defendant and of Trooper Paris at the time immediately preceding his death. In connection with this and with the permissible force for arrest, I call to your attention a statute of our State which provides as follows: *fn5
"(a) No unreasonable force or means of restraint shall be used in detaining or arresting any person.
"(b) A peace officer who is making an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall he be deemed an agressor or lose his right to self-defense by the use of reasonable force to effect an arrest.
"(c) A peace officer, who has reasonable ground to believe that the person to be arrested has committed a felony, is justified in using such force as may be necessary to effect an arrest, to ...