The Yellowstone journal. [volume] (Miles City, Mont.) 1893-1901, 1893-04-09

ing feature Of the two 1egIoes rests in
the absenc" of deiihefatior, premedition
aud nteconccrted design. from the sec
ond degree:
Tins ease Is evGcf'y liEe The one under
DISCUSSION. II both cases the t.iai court
read the statute defining the different
degrees Of homicide or copied them into
their instructions verbatim. The
reasoning ia the State vs. Meyer seems
SO convincing and conclusive thai any
other conclusion than therein stated
seems to be unauthorized. This view ol
the law is supported by numerous au-
thurities which are cited.
From consideration Of these arthori-
ties we are of the opinion that the court.
in its instructions. should have fully
and completely defined murder in the
second degree distinguishing it from
slaughter. 50 that the jury could have
had before them all the essential ele-
ments of each of these degrees of homi-
eide. so that they could intelligently
determine from the evidence which Of
the degrees appellant was guilty Of, If
guilty at all.
In cases where it is clear to the mind
Of the court that there is no evidence to
Of homicide than murder in the first de-
gree. for instance in which the cases is
produced by poisoning, or lying in wait,
the court is justified in refusing to in
struct the jury in relation to such lower
degree Of homicide.
But this case is widely distinguished
from such cases. In this case all the
degrees of homicide known to one statute
were submitted to the jury as issues to
be passed upon and determined by the
evidence and instructions of the court.
In such cases the court should clearly
define. in its instructions. each degree of
homicide. This was not done III this
case and we think the omission was
error.
instruction lG. given by the court. is
as follows: IF the jury from the evi-
dence in this case believe beyond a rea-
sonable doubt that the defendant. at or
about the time charged in the informa-
tion killed Austin Mcdonald at and
within the county Of Custer. then it will
deyove upon the jury. under the evi-
dence to determine what degree OF of
fense such killing constituted. And If
the jury believe from the evidence that
the defendant had been injured or re-
ceived provocation from the person
kiIletl. Whatever tUdI INJURY Ut pEohocd-
might have been. yet if after receiving
such injury or provocation. there should
have been an interval between the pro-
vocation given and the killing sufficient
for the voice of reason to be heard. the
killing shall be attributed to deliberate
revenge and shall be deemed murder in
the first degree. and the jury should so
find by their verdict
We think this instruction is narrowed
unnecessarily by the court. while it
might not be considered fatally when
taken in connection with the whole
charge. In drawing the distinction in
this instruction between murder in the
first degree and manslaughter, the court
| omitted the words qualifying the pro
vocation. And also in his reference to
the interval of time for the voice OF rea-
son to be heard he omits all reference TO
time for passions to cool. These words
were put into the statute by the legisla
ture for purpose. and it is dangerous to
omit these statutory words defining any
degree of homicide in a charge to the
jury. unless the court is careful in using
words equivalent in meaning.
The order overruling the motion for
| new trial is overruled. the judgment is
reversed. and new trial ordered.
The certified copy of the decision was
received and filed by Clerk Zimmerman
yesterday. and the case will be rein
stated upon the calendar for trial at the
ensuing term Of court.