State v. Russell

WOLFE, Chief Justice

(concurring

with Mr. Justice McDONOUGH).

I, too, am in accord with most of what is said in the opinion of Mr. Justice WADE in distinguishing between first and second-degree murder. Had I been on the jury I might have had grave doubt as to whether the verdict should be for first-degree murder but under the evidence as detailed by Mr. Justice McDONOUGH' I think it was a question for the

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jury. It is our duty always to keep within our province as well as to keep the jury within its province.

I do not thing that the trial court in giving instruction No. 7 meant that

malice

as required in murder cases must not have arisen before the killing to make it malice aforethought but that the matter of killing in order to come within the first division of first-degree murder must have been designed or deliberate and premeditated beforehand.

If there was no killing planned or deliberated and no malice in the mind of the defendant aforehand, the killing unless justifiable would be in the heat of passion and come under the voluntary manslaughter section. I think the fair intendment of instruction No. 7 when read in the light of other instructions was to tell the jury not that malice need not be aforethought but that the intention to kill when such constituted the malice had to be deliberate and premeditated to make it first-degree murder under the first category defined. I rather think that the words “every murder perpetrated by poison, lying in wait or other kind of deliberate, malicious and premeditated killing” show that there must be time enough to deliberate and include such killings similar to the class of lying in wait, or by poison and exclude those where the intention to kill is so sudden as to preclude time to deliberate

and

premeditate. But where to draw the limits of the zone which separates killings done in the heat of passion, although with intention, and those done with deliberation and premeditation is quite difficult. Certainly it takes some time to premeditate and deliberate. But there may be killings where the central idea was not to kill but only to do harm when the malice was first generated, yet on the instant of killing or the instant before killing such malice ripened into an intention to kill but without time enough to say that the killing was deliberate and premeditated. It would seem that such might fall in the category of second-degree murder.

While I agree generally with what is said by Mr. Justice WADE in regard to the fourth division making murder one of first degree when the killing is caused by the perpetration

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of an act greatly dangerous to the lives of others, I want to add emphasis to the fact that a very necessary element of such killing is that the one perpetrating the act must have done it under such cimcumstances as to evidence a depraved mind and have done it with at least such great indifference to human life as to make the state of mind one equivalent to that which entertains an intent to kill. That is the constructive intent. But there must be the affirmative attitude of mind of not caring. Where one does something greatly dangerous to others with gross or criminal negligence he may be guilty of involuntary manslaughter only. To lift the killing to the level of first-degree murder the person must not have been grossly thoughtless or grossly negligent merely but have affirmatively had at least the attitude “I do not care whether I kill or not.” This is the depraved mind which must accompany the loosening of force which does the killing.

I agree that this type of first-degree murder fits the case where the force is loosed without intention to direct it against a particular person. It fits the case where the force is generally loosed regardless of what or whom it may affect with a definite vicious or devil-may-care attitude. It is not necessary that the perpetrator be aware of the fact that the situation is such that it may kill or operate on more than one. He may not know whether one or several or many are in position to receive the consequences of his perfidy. It is sufficient if with utter and conscious indifference to human life he deliberately lets loose a deadly force in such a way and in such place where it is reasonably likely to injure or kill one or more persons, no particular one of which he necessarily chooses for slaughter. Certainly the person who planted the time bomb along the line of the San Francisco Preparedness Day Parade may not have specifically intended to kill any one. He may even have hoped that it would not kill any one but would make that sort of agitation to popularize preparedness very unpopular. And when he planted it he may not have known whether it would go off where many or where no people were standing. But he did

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intend the act of loosing a force highly dangerous to human life, and with utter disregard for that life. He thus perpetrated an act which was greatly dangerous to and regardless of human life but in such manner to exhibit a depraved mind regardless of whether he entertained a faint hope that no one might be hurt. That state of mind was beyond gross carelessness. It contemplated harm and direful consequences. It would have been the same if it did not so contemplate harm but intentionally did the act knowing it to be highly dangerous yet with utter indifference as. to whether it would or would not take life. Both states constitute the guilty mind.

With these comments on the opinion of Mr. Justice WADE, I concur in the opinion of Mr. Justice McDONOUGH that the instructions given were not prejudicial.