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II. Intentional discharge of firearm. (Supplementing annotation in 5 A.L.R. 603.)

There are two recent cases tending to support the rule stated in the previous annotation that the killing. of a person by an intentional discharge of a firearm into a crowd of people, with a disregard of consequences, constitutes murder. In IIaynes v. State (1920) 88 Tex. Crim. Rep. 42, 224 S. W. 1100, the defendant was convicted of murder. There was some conflict in the evidence as to whether the killing was intentional, or the result of a wanton and reckless use of a pistol. A request was made for an instruction that, if the jury found that the defendant had no in

tent to shoot or kill deceased, they

could in no event convict of murder. The court, after pointing out that the request was covered by other instructions, said: "We further observe that the requested charge was improper, because it was not necessary, to constitute murder, that the death of the person killed should have been intended. One may shoot recklessly into a crowd, or a railroad train, or in other ways so act as to manifest an apparent intention to kill, in which event his offense is murder, even though there be no specific intent to cause the death of the party killed."

In Andrews v. State (1921) Ga. App., 110 S. E. 519, there was evidence that the defendant, without excuse, shot into a crowd of persons, hitting and killing one of them. In affirming a conviction of involuntary. manslaughter in the commission of an unlawful act the court in an official syllabus stated that the defendant was fortunate in not being convicted of a higher grade of homicide.

Similarly, it has been held that one is guilty of murder who intentionally discharges a firearm into a closed automobile and kills one or more of the occupants, under circumstances indicating a depraved and malignant purpose, regardless of human life. Ex parte Finney (1922) Okla. Crim. Rep. -, 205 Pac. 197. In

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that case an application was made for a writ of habeas corpus for the purpose of having admitted to bail a deputy sheriff, charged with shooting into a closed automobile and killing two women. It appeared that the officer with a large posse was attempting, without a warrant, to arrest the driver of the automobile on a vague suspicion that he was transporting intoxicating liquors contrary to law. In denying the application the court said: "Under our statute there is but one degree of murder, and murder may be committed in any one of three ways, namely: (1) By a premeditated design to effect the death of the person killed. (2) When done in a manner imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to kill any particular person, or any person. (3) When done without a design to kill, by a person engaged in the commission of a felony. . . . As we view it, there was substantial evidence in the case here under consideration supporting each of our three statutory methods of committing murder, and especially the second. The firing of six shots into the top and body of an unidentified closed car, occupied by six persons and moving along the public highway, by officers seeking to make an arrest without a warrant, as we see it, evinces a depraved mind, regardless of human life."

In Pamplin v. State (1922) — Okla. Crim. Rep., 205 Pac. 521, a conviction of manslaughter in the second degree was affirmed where defendant, who, without written authority or commission, was acting as a kind of assistant policeman, fired his 45 double-action revolver, as he said, at one of the tires of an automobile for the purpose of stopping the driver, who, he thought, was committing a misdemeanor, killing an innocent third person who was crossing the street. The court referred to the Finney Case (Okla.) supra, for an analysis of the questions at issue in the case at bar, the two cases being, apparently, quite similar as to essential

care is negligence, without any qualifying terms, although one court, at least, has held that the word 'caution' implies a greater degree of care than the word 'prudent.' Eggett v. Allen (1900) 106 Wis. 638, 82 N. W. 556. Be this as it may, it is clear that the court went to the limit in protecting the defendant from an inconsiderate verdict."

facts, although they did not arise out of the same episode.

The killing of a person, however, by a reckless discharge of a firearm into an automobile, has been held to be only manslaughter, if done in the heat of passion on a sufficient provocation. Steen v. State (1920) 88 Tex. Crim. Rep. 256, 225 S. W. 529.

In State v. Clark (1921) 99 Or. 629, 196 Pac. 360, there was circumstantial evidence of a convincing character that the defendant, standing on a boulder, fired a bullet which severed some low hanging branches of a tree and killed his companion, who was about 6 feet beyond the tree and 93 feet from the boulder. At the time of his death the companion of the defendant was carrying a partially dressed carcass of a deer on his shoulder. In affirming a conviction of manslaughter, the court held that the following instructions did not violate any right of the defendant: "If you find beyond a reasonable doubt that the defendant, Martin A. Clark, in July, 1919, in Lane county, Oregon, fired his rifle at a deer or other object, and in firing at a deer or other object, if he did so fire, he failed to use due caution or circumspection, and involuntarily killed Charles Taylor, then the defendant would be guilty of involuntary manslaughter. . . I instruct you that homicide is manslaughter, even though committed in doing an act lawful in itself, if the defendant was guilty of gross negligence and such was the cause of the death; but the negligence must have been gross under the circumstances. A person cannot be guilty of manslaughter under the statute to which I have called your attention, unless that person is guilty of gross negligence; a mere mistake, however, where there is not gross negligence, is not manslaughter." As to the latter instruction the court said: "In this instruction the court not only guarded the rights of the defendant, but went further in that direction than the law warrants. 'Due caution' is that care which an ordinarily prudent man would exercise under the circumstances, and the want of that due

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In Lady v. State (1920) Okla. Crim. Rep., 192 Pac. 699, it was held that the accidental killing of a person by an intentional discharge of a firearm on a public road constituted manslaughter in the first degree. The decision, however, was based on statutes making the discharge of a firearm in a public place a misdemeanor, and making the killing of a person in the commission of a misdemeanor, without a design to effect his death, manslaughter in the first degree.

III. Unintentional discharge of firearm.

A North Carolina case supplementing annotation in 5 A.L.R. 610, decided since the previous annotation was prepared, is in accord with the cases discussed in that annotation to the effect that where a person is killed by a firearm unintentionally discharged by an act which is reckless, but does not evince a heart devoid of a sense of social duty, the person discharging the firearm is guilty of manslaughter. See State v. Bryant (1920) 180 N. C. 690, 104 S. E. 369, wherein it was held to be error to refuse an instruction on manslaughter, since there was evidence that at the time of the shooting the defendant's corn crib had been broken into, that the defendant stepped to a window of his house and asked his wife to hand him his pistol, and that it was accidentally discharged, causing her death. The court said: "In the present case, there were facts in evidence on the part of the defendant, permitting the inference that the homicide was not intentional, but may have been the result of culpable negligence on the part of the defendant, and so amounting only to the crime of manslaughter. State v. Stitt (1908) 146 N. C.

643, 17 L.R.A. (N.S.) 308, 61 S. E. 566; State v. Vines (1885) 93 N. C. 493, 53 Am. Rep. 466. A perusal of the record will disclose that not only is there no reference to the offense of manslaughter in the charge, but a special request for instructions presenting the question was refused or ignored by his Honor and for this. error the issue must be referred to another jury."

In Eastridge v. Com. (1922) — Ky. - 241 S. W. 806, reversing a conviction of murder, it was held that the defendant was entitled to an instruction based on the reckless or grossly careless use of firearms, constituting voluntary manslaughter, where he testified that he thought the deceased, with whom he had quarreled, was going to shoot him, and that in the scuffle the gun went off as the deceased caught the defendant's hand; that the discharge of the pistol was

due to the scuffling and pulling, and that the defendant did not aim or present the pistol at deceased.

In the reported case (DAVIS V. COM. ante, 1551) the defendant contended that it was error to fail to give an instruction on voluntary manslaughter by a wanton, reckless, or grossly careless use of a firearm, without an intention to discharge it. The court admits that such an instruction should have been given if there had been any evidence on which to base it, but states that the only evidence which was given at the trial of an unintentional discharge of the weapon would, if believed, relieve the defendant of any charge of reckless or unlawful conduct. It is, therefore, held that no error was committed in failing to give an instruction on manslaughter by an unintentional, but reckless and wanton, discharge of the weapon. W. S. R.

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Of contract, see CONTRACTS.
By railroad company of sidetracks, see

RAILROADS.
By railroad company of station general-

ly, see RAILROADS.
Of route, by railroad company, see RAIL-

ROADS.

ACTION OR SUIT.

ABSENCE.

As affecting running of limitations, see

LIMITATION OF ACTIONS.

ABUSE.

Continuance of, see CONTINUANCE AND

ADJOURNMENT.
Dismissal or discontinuance of, see Dis-

MISSAL OR DISCONTINUANCE.
Evidence, see EVIDENCE.
By executor or administrator, see Exec-

UTORS AND ADMINISTRATORS.
Between husband and wife, see HUSBAND

AND WIFE.
On insurance policy, see INSURANCE.
Limitation of time for, see. LIMITATION

OF ACTIONS.
Effect of, to interrupt running of limita-

tions, see LIMITATION OF ACTIONS.
Parties, see PARTIES.
Pleading, see PLEADING.
Trial of, see TRIAL.
Defenses.
To action for death, see DEATH.
To liability for maintaining nuisance,

see NUISANCES.

Of passenger, see CARRIERS.
Master's liability for, see MASTER AND

SERVANT.

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ABUTTING OWNER.

Rights of, in highway generally, see

HIGHWAYS.

ACCEPTANCE,

Nature; kind.
Nature of proceeding for contempt, see

CONTEMPT.
Negligent failure to perform contract,

right to maintain action in tort for.
23-947.

Of offer, see CONTRACTS.

ACCOMMODATION,

ADJOINING OWNERS.

Employer's liability growing out of un-

authorized act of employee in taking
charge of property as accommoda-
tion. 23-131 (case p. 127).

Independent contractor, employment of,

as affecting liability for injury to
adjoining premises. 23-1004,
1102.

ACCOMPLICES.

ADJOURNMENT.
Admissibility in evidence of acts or dec-
larations of, see EVIDENCE.

See CONTINUANCE AND ADJOURNMENT.
The dash in each citation stands for A.L.R.

1559

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