People v. De Silvera

Ross, J.: The information charged the defendant with the crime of murder, committed in the killing of one Anna de Silvera, with malice aforethought, by shooting her with a pistol. The evidence showed that the homicide was committed by shooting with a pistol, and there was no testimony in the case tending to show that death was caused in any other manner. The sole point relied on by the appellant for a reversal of the judgment, which fixes the death penalty, is that, in charging the jury, the Judge below used this language:

“ If you believe from the evidence, and beyond all reasonable doubt, that such murder was perpetrated by means of poison, it is murder of the first degree; or if it was perpetrated by torture, it is murder of the first degree; or if it was perpetrated by lying in wait, it is murder of the first degree; * * * or if such murder was committed in perpetrating, or attempting to perpetrate, arson, or rape, or robbery, or burglary, or mayhem, it is murder of the first degree; and you will so find.”

Since there was no testimony tending to show that deceased came to her death by any of the means mentioned in the foregoing extract from the charge, it may be assumed—taking that portion of the charge alone, and unconnected with the context—that it was erroneous. But it must be considered' in the connection in which it was given to the jury, and if it. should then appear that no injury could have resulted to the-defendant therefrom, we ought not .to reverse the judgment..

The language objected to will be found in the following-portion of the charge of the Court:

“ 5. Murder is the unlawful killing of a human being, with malice aforethought. Malice may be expressed or implied. It is expressed where there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other [594]kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, and mayhem, is murder in the first degree, and all other kinds of murder are of the second degree. In order, therefore, to find the defendant guilty of murder in the first degree, you must be convinced beyond a reasonable doubt that the defendant, Joseph Ricaud de Silvera, unlawfully and with malice aforethought killed the deceased, Anna de Silvera, either by means of poison, or by lying in wait, or by torture, or by some other kind of willful, deliberate, and premeditated killing, or in the perpetration, or in attempting to perpetrate, arson, rape, robbery, burglary, or mayhem. If you believe, from the evidence, beyond a reasonable doubt, that the defendant, Joseph Ricaud de Silyera, unlawfully, and with malice aforethought, killed the said deceased, you will find him guilty of murder, and then proceed to determine whether it is murder of the first degree, or murder of the second degree; and if you believe from the evidence, and beyond all reasonable doubt, that such murder was perpetrated by means of poison, it is murder of the first degree; or if it was perpetrated by torture, it is murder of the first degree; or if it was perpetrated by lying in wait, it is murder of the first degree; or if it was perpetrated by any other kind of willful, deliberate, and premeditated killing, it is murder of the first degree; or if such murder was committed in perpetrating, or attempting to perpetrate, arson, or rape, or robbery, or burglary, or mayhem, it is murder of the first degree, and you will so find.