
    THE UNITED STATES vs. ALBERT GREEN.
    1. Where a motion for a new trial in a capital case is certified to the General Term for hearing in the first instance, and the testimony is not sent up with the motion, the Court not being able to say how far the jury were influenced by it, will, in favorem vitse, presume that they were, perhaps, misled by that portion of the charge which the Court finds erroneous, although other portions of the charge are found to correctly announce the law of the case.
    2. In such a case, the verdict being one of murder, a new trial will be granted, where a portion of the charge seems to dwell with undue emphasis upon the effect of the use of a dangerous weapon, and fails altogether to give any consideration to the passion which may have been engendered by the previous conflict between the accused and the deceased.
    Criminal Docket.
    No. 16,810.
    Decided October 22,1888.
    The Chief Justice and Justices James and Merrick sitting.
    Motion in the Criminal Court for a new trial in a case of homicide. Certified to the General Term for hearing in the first instance.
    Statement oe the Case.
    On the 25th day of October, 1887, the defendant, Albert Green, jointly with one Fenton Webb, was indicted for the murder of James Lucas.
    On the 1st day of November, 1887, both were arraigned, and pleaded not guilty.
    On the 14th of December, 1887, a jury was empannelled for trial of both defendants, and they were jointly tried.
    A verdict of not guity was rendered as to Webb, and a verdict of guilty as indicted, as to Green.
    A motion was then made in behalf of Green for a new trial on exceptions to the following portions of the charge of the Court:
    “Again, gentlemen of the jury, if the defendant Green was the assaulting party, and Lucas did nothing from first to last except resist, or to protect himself, then, even though the defendant Green did not intend to take his life, if the injuries which he inflicted with the knife resulted in the death of Lucas, Green would be guilty of murder, provided you should be satisfied from the evidence and the description of the knife, which you have heard, that it was what the law terms a deadly or dangerous weapon, and that the knife which was used in the manner it was used by the defendant was likely to produce death or grievous bodily harm.”
    * .* * * * *
    “And lastly, gentlemen, upon this subject I think it my duty to say to you that, even if Lucas began the controversy, it was the duty of the defendant Green to do all he could reasonably to avoid and get out of the way of Lucas, by retreating or otherwise, before he could justify himself in using a dangerous weapon even to protect himself; and if he did not do what he reasonably could, by retreating or otherwise, to get out of the way, but used the weapon, which you shall find from the evidence to be a dangerous weapon — that is entirely for you — intending to take life or to inflict upon Mr. Lucas serious bodily harm, then he is guilty of murder.”
    The motion was thereupon certified to the Court in General Term for hearing in the first instance.
    Mr. R. B. Lewis, for Appellant:
    The presiding justice erred in instructing the jury—
    As to the first exception:
    “The act and an evil intent must combine to constitute in law a crime.” 1 Bishop, paragraph 206.
    The statement of the law by the trial judge as applicable to the facts which it was in the power of the jury to find is clearly erroneous. This would be manslaugher, not murder.
    
      Desty, 129 f., says if the defendant sought the difficulty for the purpose of slaying his adversary it is murder. But if he did not at the time intend to kill, but afterwards stabbed him, it is manslaughter, and cites 47 Illinois, page 379, which fully bears out the statement of the text.
    The jury are not instructed that they could infer malice from the use of a deadly weapon. Had they been, this would have been error. The use of a deadly weapon is not evidence, taken alone, of malice. (33 Geo., 306, Alford vs. State). The use of a pistol is not of itself a sufficient ground for a presumption of malice. (47 Ala., 564).
    Bishop, vol. 2, sec. 679, says:
    “It has been held, and probably is the general doctrine that the question of what is a deadly weapon is one of law for the Court — not of fact for the jury.”
    The Court in the case at bar leaves the question as to whether the knife used was a deadly weapon to the jury, as a fact to be determined by them.
    In Donnellan vs. Com., 7 Bush (Kentucky), 679, the Court, in reviewing instructions of the Court below, says:
    “The instructions to the effect that in any case the use of a deadly weapon, not in necessary self-defense, whereby death ensues, will constitute murder, was also erroneous. Such a use of a deadly weapon is evidence of malice, and may be an essential ingredient in the proof of murder in many cases, but it does not follow that every homicide committed by the use of a deadly weapon, and not in necessary self-defense, is murder.”
    But a more serious objection lies to the second excepted portion of the charge.
    The jury were instructed that Green would be guilty of murder, upon a state of facts which, if found, we submit, would have entitled him to an acquittal on the ground of self-defense, or, at the worst, could only be manslaughter. See Bishop, vol. 2, sec. 676, citing State vs. McDonnell, 32 Vermont, page 491.
    
      There is no pretence that there was any previous malice on the part of Green; but the record shows that the fight grew out of a sudden quarrel. See, also, 2 Bishop, secs. 701 and 702.
    In Phillips vs. Commonwealth, 2 Duval, 328, in a mutual . combat it is held that defendant is not bound to retreat. See also Miller vs. State, 37 Ind., 438.
    The summing up of the facts in the case by the trial judge on the theory of the prosecution shows that the prosecution could only claim that this fight ensued in a sudden quarrel without previous malice, and that it was a mutual combat in which both Lucas and Green simultaneously “ pitched ” at each other.
    The killing under such circumstances at common law, which prevails here, could, at the worst, be only held to be manslaughter, if not reduced to a less offense.
    The two portions of the charge of the judge to which exceptions are taken, are independent propositions, dependent upon nothing that goes before or comes after, except the facts stated as adduced in the trial, and as matters of law were neither modified or explained, the jury had a right to conclude that they might take this portion of the judge’s charge as the statement of the law of the case by which they were to be guided in forming a verdict. The error is plain.
    Conflicting instructions alone by the trial judge to the jury is error and sufficient ground for awarding a new trial. Clem vs. State, 31 Ind., 484, 485; Hamilton’s Case, 4 Mackey, 446.
    Mr. John Blair Hog-e, District Attorney, for the United States:
    As to the first exception the Court in effect said, that a wanton attack with a lethal weapon used in a manner likely to produce grievous bodily harm or death is murder by the assailant if death result although he did not intend to kill.
    
    Tb ere was no error in this.
    The contention of counsel that in every case of murder there must be an intent to kill is not sustained by authority.
    Suppose a wanton intent to maim and, though not intended by the assailant, death results, can it be urged that the crime is not murder?
    An actual intent to take life is not a necessary ingredient in murder. Bishop Criminal Law, vol. II, par. 676; State vs. Decklotts, 19 Iowa, 447.
    Lord Hale (1 Hale, 440, 441) says:
    “So if a large stone be thrown at one with deliberate intention to hurt though not to kill him and by accident it kill him, or any other, this is murder.”
    To the same effect is Russell on Crimes (vol. I, page 742).
    The intent to do enormous or severe bodily harm, followed up by homicide constitutes murder. Wharton on Homicide, par. 40, page 28.
    It is not, as counsel asserts, thoroughly settled that, whether a weapon is deadly or not, is a question of law for the Court. A weapon is deadly, per se, as a loaded pistol, a dirk, an axe, and in such cases it is a matter of law for the Court; but where án instrument is deadly or dangerous by the manner in which it is used, this being dependent on the facts in the case, the jury must pass on the question of fact, under the instructions of the Court. Such is the case at bar. The knife was not, per ¿e, a deadly weapon, and the Court’s instruction was proper. Bishop on Statutory Crimes, page 320; Hunt vs. State, 6 Tex., App., 663; Koun vs. State, 3 Tex., App., 13; United States vs. Small, 2 Curt., C. C., 24, page 243.
    The charge of a judge should be viewed rather as a whole than in its parts, and if adapted to leave on the j ury an impression reasonably accurate it will not be treated as erroneous, though not in all particulars scientifically exact. Bishop on Criminal Precedure, vol. 1, sec. 980.
    The portions of the charge objected to are not isolated propositions, but are interwoven with the whole instructions, and must be so considered.
    Whether or not a correction in a charge is deemed to be made will be determined from a consideration of the whole and of all the circumstances. Bishop on Criminal Procedure, vol. 1, page 980, and authorities there cited.
   Mr. Justice Merricic

delivered the opinion of the Court:

This is a motion for a new trial in the Criminal Court, certified by the justice to be heard here in the first instance upon alleged errors in the charge of the Court.

The testimony has not been sent up with the motion, and the only means we have of getting at its character is from the summary of the testimony given by the judge to the jury and recited in the charge itself. Under circumstances of this sort it is difficult to say how far a jury may or may not have been misled by one part of the charge, when another part of the charge is correct, since we have not the whole of the testimony before us and cannot say in what manner it influenced the minds of the jury.

In addition to that, the verdict found the accused guilty of murder; so that the life of a fellow-being is involved, and it will not do, under such circumstances for an appelate court to speculate as to whether or not the Court wrho tried the cause may or may not have misled the jury in any part of his instructions and charge. Under such circumstance^ if it appear that there has been an errroneous instruction in any of the rulings given by the Court to the jury, it would seem, out of tenderness to human life and the great regard which the law has to the most scrupulous administration of justice, and nothing more than justice, in such cases, that the question should be remanded for a second trial, and the Court above should not speculate at all upon the possibility of the jury having been misled. It is its duty to infer that perhaps the jury may have been misled. The trial involving the life of a fellow-being should be above all exception.

In this case the justice at the trial certainly in many respects did lay down the rule properly,-correctly, exactly, discriminating between the law of homicide and manslaughter and the law of self-defense, and distinguishing in many parts of the charge what provocation would or would not reduce a case from the crime of murder, as averred, to the crime of manslaughter, as proved. Notwithstanding this, in a part of his charge he gave an instruction to them with very manifest emphasis, according to the terms of the instruction, which omitted several very essential elements of the definition which he elsewhere gave to the jury. I refer to that part of the charge which is in these words :

“And lastly, gentlemen, upon this subject I think it my duty to say to you that, even if Lucas began the controversy [Lucas was the name of the deceased], it was the duty of the defendant, Green, to do all he could reasonably to avoid and get out of the way of Lucas, by retreating, or otherwise, before he could justify himself in using a dangerous weapon even to, protect himself; and if he did not do what he reasonably could, by retreating, or otherwise, to get out of the way, but used the weapon which you shall find from the evidence to be a dangerous weapon — that is entirely for you — intending to take life or to inflict upon Mr. Lucas serious bodily harm, then he is guilty of murder,”

That part of the instruction seems to dwell with undue emphasis upon the effect of the use of a dangerous weapon, and ignores altogether the question of the heat of blood that may have been excited by the previous assault and conflict, as well as the question of the cooling time that may or may not have intervened after the assault and before the use of a deadly weapon. It confounds entirely the broad distinction between manslaughter and murder, although a deadly weapon may have been used, where there has been an antecedent assault on the part of the deceased tending to arouse human passion beyond the control which the law requires to be exercised over our bad impulses. Manifestly, then, that part of the charge was erroneous, and it tended — it must have had a tendency — to aggravate in the minds of the jury, the judgment which they rendered upon the facts of the case, giving undue prominence to the use of the lethal, weapon, and dwarfing the consideration of the allowance which might have been made for passion engendered in the mind of the defendant in the conflict, between the parties, preceding that fatal act on his part.

For these reasons the case will be certified bach to the Criminal Court with instructions to aivard a new trial.  