People v. Murback

McKee, J. Appeal from a judgment of death pronounced against the defendant upon a conviction for murder in the first degree, and also from an order made subsequent to the judgment. The assignments of error are that the court exceeded its jurisdiction in making the order appealed from, and that it misdirected the jury by .the following instructions, namely:— “1. You can find defendant guilty of murder in the first degree, or guilty of murder in the second degree, or guilty of manslaughter, or you may render a verdict of not guilty; and it is for you to decide which one of those verdicts you may render; but if you do find the defendant guilty of murder in the first degree, you have the discretion to determine the nature of his punishment; and if in your sound judgment and discretion there is any fact or circumstance in the case which ought to mitigate the extreme penalty of death, you will by your verdict indicate the same; but if you find no such mitigation in the facts of the case, and think the death penalty should be inflicted, you will simply find him guilty of murder in the first degree.” “ 2. No words of reproach, however grievous, are sufficient provocation to reduce the offense of an intentional homicide with a deadly weapon from murder to manslaughter.”

Objection is made to the first instruction that the court in saying to the jury, “ but if you do find the defendant guilty of [371]murder in the first degree,” etc., virtually announced that the defendant was guilty of that crime; and that by the other parts of the instruction the jury were improperly restricted in the exercise of tlicir power of discretion to determine the punishment to be inflicted upon the defendant.

There was no assumption of the guilt of the defendant in the language employed by the court. The jury were properly directed that they could, upon the indictment, find the defendant guilty of any offense included within the crime for Avhich he Avas indicted; but if they should find him guilty of the highest offense, namely, murder in the first degree, it would be their duty to decide AArhether he should suffer death or confinement in the State prison for life, and that Avas to be determined at their discretion. With this power of discretion a court cannot interfere. The jury should be left entirely free to act according to their judgment. If they see fit to exercise the power at all, they have the exclusive right to determine, within the limits prescribed by the law which gives them the poAArer, the punishment for Avhich the defendant ought to be sentenced. And Ave find nothing in the challenged instruction Avhich limited or restrained them in the exercise of that power.