1. Under a statute establishing degrees of the crime of murder,
and providing that willful, deliberate, malicious, and premeditated
killing shall be murder in the first degree, evidence that the
accused was intoxicated at the time of the killing is competent for
the consideration of the jury upon the question whether he was in
such a condition of mind as to be capable of deliberate
premeditation.
2. Under a statute which requires the instructions of the judge
to the jury to be reduced to writing before they are given and
provides that they shall form part of the record and be subjects of
appeal, it is error to give an instruction not reduced to writing
otherwise than by a reference to a certain page of a law
magazine.
The facts are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the court.
The plaintiff in error was indicted, convicted, and sentenced
for the crime of murder in the first degree in the District Court
of the Third Judicial District of the Territory of Utah, and
presented a bill of exceptions, which was allowed by the presiding
judge, and from his judgment and sentence appealed to the supreme
court of the territory, and that court having affirmed and judgment
and sentence, he sued out a writ of error from this Court. Of the
various errors assigned, we have found it necessary to consider two
only.
Page 104 U. S. 632
The Penal Code of Utah contains the following provisions:
"Every murder perpetrated by poison, lying in wait, or any other
kind of willful, deliberate, malicious, and premeditated killing,
or committed in the perpetration of or attempt to perpetrate any
arson, rape, burglary, or robbery, or perpetrated from a
premeditated design unlawfully and maliciously to effect the death
of any other human being other than him who is killed, or
perpetrated by any act greatly dangerous to the lives of others and
evidencing a depraved mind regardless of human life, is murder in
the first degree, and any other homicide committed under such
circumstances as would have constituted murder at common law is
murder in the second degree."
Sec. 89.
"Every person guilty of murder in the first degree shall suffer
death or, upon the recommendation of the jury, may be imprisoned at
hard labor in the penitentiary for life at the discretion of the
court, and every person guilty of murder in the second degree shall
be imprisoned at hard labor in the penitentiary for not less than
five nor more than fifteen years."
Sec. 90. Compiled Laws of Utah of 1876, pp. 585, 586.
By the Utah Code of Criminal Procedure, the charge of the judge
to the jury at the trial "must be reduced to writing before it is
given, unless by the mutual consent of the parties it is given
orally," sec. 257, cl. 7; the jury, upon retiring for deliberation,
may take with them the written instructions given (sec. 289),
and
"When written charges have been presented, given, or refused,
the questions presented in such charges need not be excepted to or
embodied in a bill of exceptions, but the written charges or the
report, with the endorsements showing the action of the court, form
part of the record, and any error in the decision of the court
thereon may be taken advantage of on appeal, in like manner as if
presented in a bill of exceptions."
Sec. 315. Laws of Utah of 1878, pp. 115, 121, 126.
It appears by the bill of exceptions that evidence was
introduced at the trial tending to show that the defendant was
intoxicated at the time of the alleged homicide.
The defendant's fifth request for instructions, which was
endorsed "refused" by the judge, was as follows:
"Drunkenness
Page 104 U. S. 633
is not an excuse for crime, but as in all cases where a jury
find a defendant guilty of murder, they have to determine the
degree of crime, it becomes necessary for them to inquire as to the
state of mind under which he acted, and in the prosecution of such
an inquiry his condition as drunk of sober is proper to be
considered, where the homicide is not committed by means of poison,
lying in wait, or torture, or in the perpetration of or attempt to
perpetrate arson, rape, robbery, or burglary. The degree of the
offense depends entirely upon the question whether the killing was
willful, deliberate, and premeditated, and upon that question it is
proper for the jury to consider evidence of intoxication, if such
there be; not upon the ground that drunkenness renders a criminal
act less criminal, or can be received in extenuation or excuse, but
upon the ground that the condition of the defendant's mind at the
time the act was committed must be inquired after, in order to
justly determine the question as to whether his mind was capable of
that deliberation or premeditation which, according as they are
absent or present, determine the degree of the crime."
Upon this subject, the judge gave only the following written
instruction:
"A man who voluntarily puts himself in a condition to have no
control of his actions must be held to intend the consequences. The
safety of the community requires this rule. Intoxication is so
easily counterfeited, and when real is so often resorted to as a
means of nerving a person up to the commission of some desperate
act, and is withal so inexcusable in itself, that law has never
recognized it as an excuse for crime."
The instruction requested and refused, and the instruction
given, being matter of record and subjects of appeal under the
provision of the Utah Code of Criminal Procedure, sec. 315, above
quoted, their correctness is clearly open to consideration in this
court.
Young v.
Martin, 8 Wall. 354.
At common law, indeed, as a general rule, voluntary intoxication
affords no excuse, justification, or extenuation of a crime
committed under its influence.
United States v. Drew, 5
Mass. 28;
United States v. McGlue, 1 Curt. 1;
Commonwealth v. Hawkins, 3 Gray (Mass.) 463;
People v.
Rogers, 18
Page 104 U. S. 634
N.Y. 9. But when a statute establishing different degrees of
murder requires deliberate premeditation in order to constitute
murder in the first degree, the question whether the accused is in
such a condition of mind, by reason of drunkenness or otherwise, as
to be capable of deliberate premeditation, necessarily becomes a
material subject of consideration by the jury. The law has been
repeatedly so ruled in the Supreme Judicial Court of Massachusetts
in cases tried before a full court, one of which is reported upon
other points,
Commonwealth v. Dorsey, 103 Mass. 412; and
in well considered cases in courts of other states.
Pirtle v.
State, 9 Humph. (Tenn.) 663;
Haile v. State, 11
id. 154;
Kelly v. Commonwealth, 1 Grant (Pa.)
Cas. 484;
Keenan v. Commonwealth, 44 Pa.St. 55;
Jones
v. Commonwealth, 75
id. 403;
People v.
Belencia, 21 Cal. 544;
People v. Williams, 43
id. 344;
State v. Johnson, 40 Conn. 136, and 41
id. 584;
Pigman v. State of Ohio, 14 Ohio 555,
557. And the same rule is expressly enacted in the Penal Code of
Utah, sec. 20:
"No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of his having been in such
condition. But whenever the actual existence of any particular
purpose, motive, or intent is a necessary element to constitute any
particular species or degree of crime, the jury may take into
consideration the fact that the accused was intoxicated at the
time, in determining the purpose, motive, or intent with which he
committed the act."
Compiled Laws of Utah of 1876, pp. 568, 569.
The instruction requested by the defendant clearly and
accurately stated the law applicable to the case, and the refusal
to give that instruction, taken in connection wt h the unqualified
instruction actually given, necessarily prejudiced him with the
jury.
One other error assigned presents a question of practice of such
importance that it is proper to express an opinion upon it, in
order to prevent a repetition of the error upon another trial.
By the provisions of the Utah Code of Criminal Procedure,
already referred to, the charge of the judge to the jury at the
trial must be reduced to writing before it is given, unless the
parties consent to its being given orally; and the written
Page 104 U. S. 635
charges or instructions form part of the record, may be taken by
the jury on retiring for deliberation, and are subjects of appeal.
The object of these provisions is to require all the instructions
given by the judge to the jury to be reduced to writing and
recorded, so that neither the jury, in deliberating upon the case,
nor a court of error, upon exceptions or appeal, can have any doubt
what those instructions were; and the giving, without the
defendant's consent, of charges or instructions to the jury, which
are not so reduced to writing and recorded, is error.
Feriter
v. State, 33 Ind. 283;
State of Missouri v. Cooper,
45 Mo. 64;
People v. Sanford, 43 Cal. 29;
Gile v.
People, 1 Col. 60;
State v. Potter, 15 Kan. 302.
The bill of exceptions shows that the presiding judge, after
giving to the jury an instruction requested in writing by the
defendant upon the general burden of proof, proceeded of his own
motion, and without the defendant's consent, to read from a printed
book an instruction which was not reduced to writing, nor filed
with the other instructions in the case, but was referred to in
writing in these words only: "Follow this from Magazine American
Law Register, July, 1868, page 559," and that to the instruction so
given an exception was taken and allowed.
This was a clear disregard of the provisions of the statute. The
instruction was not reduced to writing, filed, and made part of the
record, as the statute required. If the book was not given to the
jury when they retired for deliberation, they did not have with
them the whole of the instructions of the judge, as the state
contemplated. If they were permitted to take the book with them
without the defendant's consent, that would of itself be ground of
exception.
Merrill v. Nary, 10 Allen (Mass.) 416.
For these reasons, the judgment must be reversed, and the case
remanded with instructions to set aside the verdict and order a
New trial.