In deciding that the indictment in this case was not defective: in overruling the challenge of the juror for favor: in not allowing the question to be put to Sarah Jane Sanchez, as to the facts to which she had testified before the coroner: in not allowing the question to be *Page 156 put to Dr. Ranney, as to his doubts of the prisoner's mental capacity to form a premeditated design to take away life; I agree with the Supreme Court, in thinking that the judge, before whom this cause was tried at the Sessions, decided correctly. On the other exceptions, however, I have arrived at a different conclusion.
The wife of the prisoner having been examined by consent testified before the coroner that, a few months before the fatal act, her husband had accused her of having improper intercourse with a man named Annisetto Lajeunechette; and the theory of the defence is, that not long before, he had received information of her infidelity from Lajeunechette himself, or from some other person; that this information, operating upon an excitable and jealous temperament, infuriated him to so great a degree as to deprive him, momentarily, of reason, and that in this state of frenzy, he committed the deed for which he was indicted.
Lajeunechette was produced and examined at the trial, on behalf of the prisoner, and, among other questions, was asked whether, at any time after the marriage of Sanchez, he had given him any information of his wife's infidelity, and if so, when. The counsel for the People objected to the question, and the objection was sustained.
We must bear in mind that the defendant was under trial for murder, and that the jury convicted him of that offence.
By the Revised Statutes, the killing of a human being is murder: 1st. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being. 2d. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. And, 3d. When perpetrated, without any design to effect death, by a person engaged in the commission of a felony. In other words, to employ the common law definition, murder is the killing of any person with malice prepense, or aforethought, either express or implied. Malice is implied in every unlawful killing, and, as a *Page 157 general rule, all homicide is presumed to be malicious, and, of course, to amount to murder, until the contrary appears from circumstances of alleviation, excuse or justification.
Of the description contained in the Revised Statutes, and in the common law definition, premeditated design, malice prepense, is the chief characteristic by which murder is to be distinguished from any other kind of homicide. This premeditated design, however, may be matured in a minute, as well as in an hour or a day; it may, although the product of an instantaneous conception, be, nevertheless, a deliberate, willful and premeditated killing. But, in inquiring into the existence of this design, it is, plainly, necessary and proper to inquire, whether the person committing the act was capable of premeditation. Premeditation presupposes the consent of the will; without which, human actions cannot be considered culpable. The instances in which the law supposes a want or defect of will are numerous; such as infancy, lunacy, subjection to the power of others, and ignorance of facts, as where a man intending to kill a thief, or a house breaker in his own house, by mistake kills one of his own family. A state of intoxication of itself, indeed, does not necessarily incapacitate a man from forming a premeditated design; it is rather an aggravation of the offence, when, in order to cloud his conscience, and nerve his resolution, he becomes intoxicated. But, still, as intoxication unsettles the understanding and excites the passions, it may be evidence of the want of malice or design. In other words, it may or may not produce this incapacity to form a premeditated design, of which the jury shall judge from the circumstances of each particular case. In The People v. Eastwood (4 Kern., 562), it is expressly held, "if one has lost his senses, and become insane, he has ceased to be accountable to the criminal law, whether the loss of intellect was caused by misfortune, or his own imprudence in the use of intoxicating liquors, or by any willful act of his own. The loss of intellect takes away the faculty of possessing that design, what is an essential part of the offence of murder. So, if any other condition of the man deprives him of the power *Page 158 of knowing what he does, or of entertaining a design in acting, he cannot commit any offence of which design is an essential element." This incapacity, then, extends to any mental condition, by which a man is deprived of the power of knowing what he does, or the effect of what he does.
Like intoxication, jealousy is not of itself an excuse for murder; but can there be any reason, if it pervades the mind to such a degree as to unsettle the understanding and dethrone the will, that it should not, like intoxication, be proper evidence tending to show that the prisoner was not capable of forming the premeditated design, which is an essential element in the crime of murder? Of all the emotions which agitate the human mind, that of jealousy is the most overpowering. The horror, that fills the mind, on the discovery of the infidelity of a beloved object, produces a tumult which permits nothing to be felt but the commotion itself. Perplexed and disquieted by the flux and reflux of conflicting emotions, the mind is utterly bewildered, is incapable of control, and is often, indeed generally, in a state of moral unconsciousness. While the paroxysm lasts, the unhappy subject of it is certainly as incapable of forming a deliberate intent to commit a crime, as any person in a state of intoxication. But, it may be said, would not this be an excuse for almost every act of violence? Is not every outrage prompted by passion? Is not the man to be excused, who, feeling a real or imaginary insult or wrong, of any description, shoots or stabs his victim, whenever he has an opportunity, because he also is under the influence of passion? Undoubtedly, whatever may be the cause of the passion, if it produces a sudden paroxysm, rendering its subject incapable of distinguishing between right and wrong, he should be excused; and this capacity is precisely what the jury have to determine. If the killer, however great may be the provocation, or the impetuosity of his passion, lays his plans ingeniously and cautiously, calmly awaits his opportunity, or, even, if he commits the violence immediately on receiving the insult or information of the wrong, but, nevertheless, shows a deliberate purpose under the control of the will, he is responsible for *Page 159 the act, and must suffer the penalty. But it is for the jury, I repeat, to determine his capacity, and I readily say with Chief Justice MANSFIELD in Billingham's case, that "in order to support such a defence, it ought to be proved by the most distinct and unquestionable evidence." The jury, however, under the charge of the court, are alone to judge of its efficacy, and no evidence should be excluded from them, that has any tendency to establish this defence.
The counsel for the prosecution maintains that the question put to Lajeunechette only concerned information given to the prisoner, not the actual condition of his mind. But, if it was proper to show the actual condition of his mind, it was equally proper to show anything calculated to produce that condition; — leaving it to the jury, under all the circumstances, to determine its effect.
It may be objected, that the question under consideration was too general — that it should have specified time and circumstances, so as to show whether it was intended to prove, that the prisoner received the alleged information, relative to his wife's infidelity, at a time sufficiently near the period at which the homicide was committed. The answer to this is, that the objection to the question was not placed upon this ground. It was the duty of the district attorney to do this; if he specified the ground of his objection, the counsel for the prisoner would probably have confined his question to it.
I think, therefore, that the judge erred in not allowing the question to be put to Lajeunechette, and, for the same reasons, in not allowing the question proposed to be put to Tibulcio Aguillar.
Whether there was error in not allowing the question to be put to Tibulcio Aguillar as to previous statements of facts made by Lajeunechette, different from those made by him on the stand, is a more difficult question.
As a general rule, a party is not permitted to discredit his own witness by general evidence, — that is, he cannot prove him to be of such a general bad character, as would render him unworthy of credit. A party is not precluded from proving *Page 160 the truth of any particular fact by any other competent testimony, in direct contradiction to what his own witness might have testified; but whether he can prove that the witness had previously stated the facts in a different manner is, according to Greenleaf, a question upon which there exists some diversity of opinion (1 Greenleaf's Ev., § 444); although Phillipps in his treatise considers it well settled, that a party cannot show that a witness whom he has called, has been heard, at other times, to make a different representation.
We have not been referred to any decision, nor do I know of any in this State upon this precise point, nor, indeed, am I aware of any current of authority upon it, anywhere. The cases, to which we have been referred, merely show that a party calling a witness is not precluded from proving the truth of any particular fact, by any other competent testimony, in direct contradiction to what such witness has testified.
It is urged, in favor of excluding proof of contradictory statements, previously made by a witness, whom the party has called, that to admit such proof would enable him to get the naked declarations of a witness before the jury, operating in truth as independent evidence; while in favor of admitting such evidence, it is urged that a party is not to be sacrificed to his witness: that he is not represented by him, nor identified with him; and that he ought not to be entrapped by the arts of a designing man, perhaps in the interest of his adversary.
The general rule laid down by Hawkins is, "what a witness hath been heard to say, at another time, may be given in evidence, in order either to invalidate or confirm the testimony, which he gives in court." (Hawk., b. 2, ch. 46, § 14.) This has been frequently recognized; but has not always been allowed to a party in relation to his own witness. But, the main objection urged against it in such a case is applicable to all cases, — namely, that it would enable the party to get the naked declarations of a witness before the jury, operating in truth as independent evidence. Surely this danger is no greater, where the contradictory declarations are proved by the *Page 161 party who calls the witness, than when they are proved by the adverse party.
Nor can I see the philosophy of allowing a party to correct his own witness, even by directly contradicting him by other witnesses, and not allowing him to contradict him, or weaken his credibility before the jury, by previous contradictory statements made by him. The latter is maintained, chiefly, because it would be a violation of the rule, that the party calling the witness shall not impeach him. Does it not invalidate his testimony at least quite as much to contradict him through the mouth of another witness, as through his own?
On the whole, I consider that the interests of justice will be promoted, by allowing every party to correct the testimony of witnesses, whether called by himself or not. Those narrow notions, by which evidence has been hampered and suppressed, and truth gainsaid, are gradually yielding to more comprehensive and to sounder views, and I know of no principle more unjust and more inexpedient, than to conclude a party by whatever his witness swears, without giving him every opportunity of correcting the testimony, if the witness should intentionally or unintentionally swear falsely. Let the jury weigh all.
I, therefore, deem that the court below also erred in not allowing the question to be put to Aguillar, as to previous statements made by the witness Lajeunechette.
The judgment of the Supreme Court should be reversed, and a new trial ordered.
All the judges were for reversal, for the reasons stated inHartung v. The People (ante p. 95). Upon the exceptions taken at the trial in this case, all the judges were for affirmance except SELDEN and CLERKE, Js.
Judgment reversed, and new trial ordered. *Page 162