I think the judgment of conviction should be affirmed. Assuming that up to the time when Mauro started to leave the saloon he had been the aggressor, and that the defendant had up to that time simply defended himself from attack, there was after the defendant first drew his pistol ample opportunity for him to have avoided further encounter or association with Mauro and there was also an abundance of time after he commenced to run after Mauro, and before the fatal shot was fired, for him to have deliberated and determined whether he would shoot and kill him. The evidence is overwhelming that when the defendant drew his pistol not only did the other persons present in the saloon run therefrom but that Mauro ran from the saloon and was then followed by the defendant. Mauro ran diagonally across the street and the defendant shot at him as he ran, and a few seconds after the first shot was fired and when Mauro was about one hundred feet from the door of the saloon running from the defendant on the opposite side of the street therefrom, the defendant, who was then in the street from ten to fifty feet behind Mauro, stopped and deliberately took aim at him and fired the fatal shot.
If the defendant had killed Mauro at the time when he backed away from him and ineffectually snapped his pistol three times while they were in the saloon together, his claim that he was acting in self-defense or in the heat of passion *Page 572 might have been accepted by the jury. And if the jury had, under such circumstances, found the defendant guilty of murder in the first degree much that is said by the majority of the court in the opinion about to be handed down would apply to the facts as they would then have been presented. The defendant's claim that he committed the homicide in self-defense, however, is without merit. It rests solely upon his own testimony, and it is clearly opposed to the testimony of all the other witnesses, and to the admitted facts and circumstances, particularly those relating to the place where Mauro was when he was killed.
The members of this court are unanimous in the opinion that the evidence is sufficient to sustain the verdict of murder in the first degree, although some of the members of the court would not, as jurymen, have voted for such a verdict, but would have found a verdict of murder in the second degree, or of manslaughter in the first degree. Perhaps a verdict for a lesser degree of crime would have been more satisfactory to all of us. Many questions are suggested in the majority opinion. Every question so suggested has been answered by the jury against the defendant, and there is evidence to sustain the answers so given to each of such questions. The responsibility in deciding upon the evidence and for the verdict rests upon the jurymen. A majority of the members of the court, as I understand from the opinion about to be handed down, concede that the errors committed by the trial court, if any, are slight, but they are of the opinion that the trial judge in his charge dwelt with emphasis on the fact that the defendant had time to deliberate, but did not with equal emphasis ask the jury to find whether he actually did deliberate before firing the fatal shot. Much is said about Mauro being the aggressor in the first instance, and that some of the evidence could be so construed as to permit of a verdict of manslaughter in the first degree. An examination of the evidence leads me to the conclusion that the defendant intended to kill Mauro, and that a verdict either of murder in the first degree based upon deliberation and premeditation, or of murder in the second degree based upon a design to effect the death of Mauro, although without deliberation and premeditation, *Page 573 was to have been expected. The defendant's experienced counsel doubtless appreciated the effect of the testimony that would be produced and the defendant's danger of being found guilty of murder in the first degree. On the trial, as we have seen, he devoted substantially all his efforts to show the court and jury that the shooting by the defendant was done in self-defense. The entire record shows that that effort was continued until the final disposition of the case. The trial judge devoted the greater part of his charge to that subject. It was most natural for him to devote his charge principally to the questions that had been made prominent in the course of the trial.
I do not find in the charge of the trial judge anything unfair to the defendant. In the prevailing opinion is a quotation from the charge in proof and confirmation of the statement that it is suggestive and edgewise toward the defendant. There is omitted from the quotation after the words "This is solely for you to determine," the following words of the trial judge, viz.: "Of course, unless you have some reason for it, it would not be proper for you to arbitrarily state that this or that witness is perjuring himself. You should have some basis for a finding of that kind. And what I say with regard to the People's witnesses I will now repeat with regard to witnesses for the defense — that you should not arbitrarily state that any witness for the defense, including the defendant, has committed perjury. You should have some basis for it — some basis such as interest in the case or some other motive." So, in every instance, the jury were correctly charged as to their duty in weighing testimony.
The court narrated to the jury the substance of the testimony given by the defendant personally and by his witnesses, and said, "The People are bound to satisfy you beyond a reasonable doubt that the defendant is guilty of a deliberate and premeditated murder. It is not for the defendant to prove his innocence, it is for the People to prove his guilt beyond a reasonable doubt." The court further said, "If you find that he is not guilty of murder in the first degree or if you have any reasonable doubt that he is guilty of that grade of homicide then it would be your duty to consider whether or not he is guilty of murder in the second degree." *Page 574
"Murder in the second degree is defined by statute to be as follows: Such killing of a human being is murder in the second degree when committed with the design to effect the death of the person killed, or of another, but without premeditation or deliberation. You see it differs from murder in the first degree in that murder in the first degree the design to kill must be preceded by some amount of deliberation and premeditation. In murder in the second degree there need not be that premeditation and deliberation but only a design to kill. And if you are satisfied upon this evidence that the defendant was guilty of murder in the second degree — that is a killing without deliberation or premeditation — but with a design to kill, then you should find him guilty of murder in the second degree."
"Of course if he acted in self-defense why he is not guilty of any grade of crime. If you find that he is not guilty of murder in the first degree, and not guilty of murder in the second degree, or have a reasonable doubt on that subject, then you consider whether he is guilty of manslaughter in the first degree. And that is a crime that is defined as follows, `Such crime is manslaughter in the first degree when committed without a design to effect death in the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon.' So your verdict in this case may be either guilty of murder in the first degree. Guilty of murder in the second degree. Guilty of manslaughter in the first degree. Or, not guilty."
I do not see how the jury could have misunderstood such a plain and accurate statement of the law applicable to the evidence before the jury. At the close of the main charge counsel for the defendant made two unimportant requests to further charge the jury, both of which requests were substantially granted and the charge was then satisfactory to the defendant. The only other request by the counsel for the defendant is the one in regard to the defendant's flight which has been referred to in the prevailing opinion.
The statements made by the court to the jury when they returned for further instructions were clear, full and accurate and the jury could not have then misunderstood the court. *Page 575 No objection or exception was taken by either party. After a court has charged a jury at length and has passed upon all requests to charge made by counsel for the parties, it rests in a reasonable discretion whether further requests to charge will be made. This is particularly so when the remarks made by the court to the jury on their return into court are clear and accurate and the requests for further charges relate to matters not directly within the questions suggested by members of the jury, but are merely incidental thereto. If the request to further charge the jury which was made by the district attorney had been so made by him at the end of the main charge, it should have been granted and I will assume that it is also true of the request made by the defendant's counsel. The court treated both sides alike and refused to further charge the jury and in my opinion it was not error for him so to decide. No exception was taken and the determination by the court not to further charge was substantially assented to by both counsel. In any event the fact that the defendant was not in the first instance the aggressor was not at any time seriously disputed.
The defendant's testimony fully discloses that he claimed that after he gave a drink to every one in the saloon, and saw "the bad way he (Mauro) was looking at me (defendant)" that he stood up "because I (he) wanted to go away," and that he further claimed that he desired to escape from Mauro. The refusal to allow the defendant to answer the question, "Now tell the jury the reason, if you know, after ordering the drinks for everybody there including the deceased, you wanted to go away," could not have prejudiced the defendant. It was intended at most to elicit testimony that was already in substance before the jury.
I do not think it was error to exclude an answer to the question as follows: "Can you tell the jury any reason why your coat is cut and there are no cuts on your body?" The coat is present in this court and has been examined by the members of the court and it appears from such cuts that they were slight in extent and that they did not extend through the lining of the coat. The suggestion in the prevailing opinion that the defendant may have answered this question by stating *Page 576 that he wore an unusually thick woolen shirt, or that the knife struck a button or that he might have given some other special fact in explanation of his body not being cut is quite imaginary. The appearance of the coat itself answers beyond controversy any suggestion that there was any special and peculiar reason why his person was not cut.
It is to be expected that judges will differ to some extent in the use of language in expressing their thoughts and also in their conception of the relative importance of events in any controversy. If a trial judge correctly quotes from and refers to the evidence received during a trial and accurately states the law applicable thereto, the judgment entered upon the verdict of a jury should not be reversed because an appellate court in the quiet and deliberate examination of the case is of the opinion that the trial court could have so framed the charge as to have given greater prominence to some of the evidence than was given by him to such evidence and thus possibly have saved the defendant from a conviction of a crime as serious in its consequences as that of which he was convicted. If the particular language of a trial court is to be considered and the relative amount of time taken by the court upon the different branches of the case in charging the jury is to be measured except for the one purpose of determining whether the defendant has had a fair trial, it will be practically impossible for any trial court to satisfy a court upon appeal where there is a difference of opinion as to the weight of evidence upon the questions submitted to and determined by the jury. The reversal in this case is based more upon dissatisfaction with the determination of the jury than it is upon any substantial error committed by the trial court.
The judgment of conviction should be affirmed.
EDWARD T. BARTLETT and HISCOCK, JJ., concur with VANN, J.; WERNER, J., concurs in result on the ground that the trial judge's instructions to the jury on the subject of manslaughter in the first degree, although technically correct so far as they go, were insufficient in view of the peculiar circumstances of this case; CULLEN, Ch. J., and GRAY, J., concur with CHASE, J.
Judgment of conviction reversed and new trial ordered. *Page 577