[412 Pa. 527] [194 A.2d 913] M. Barney Cohen, Harold Gondelman, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., George Ross, William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.

[412 Pa. 526] Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

[412 Pa. 527] BELL, Chief Justice.

The defendant, Carroll, pleaded guilty generally to an indictment charging him with the murder of his wife, and was tried by a Judge without a jury in the Court of Oyer and Terminer of Allegheny County. That Court found him guilty of first degree murder and sentenced him to life imprisonment. Following argument and denial of motions in arrest of judgment and for a new trial, defendant took this appeal. The only questions involved are thus stated by the appellant:

(1) 'Does not the evidence sustain a conviction no higher than murder in the second degree?

(2) 'Does not the evidence of defendant's good character, together with the testimony of medical experts, including the psychiatrist for the Behavior Clinic of Allegheny County, that the homicide was not premeditated or intentional, require^[1] the Court below [412 Pa. 528] to fix the degree of guilt of defendant no higher than murder in the second degree?'

The defendant married the deceased in 1955, when he was serving in the Army in California. Subsequently he was stationed in Alabama, and later in Greenland. During the latter tour of duty, defendant's wife and two children lived with his parents in New Jersey. Because this arrangement proved incompatible, defendant returned to the United States on emergency leave in order to move his family to their own quarters. On his wife's insistence, defendant was forced first to secure a 'compassionate transfer' back to the States, and subsequently to resign from the Army in July of 1960, by which time he had attained the rank of Chief Warrant Officer. Defendant was a hard worker, earned a substantial salary and bore a very good reputation among his neighbors.

In 1958, decedent-wife suffered a fractured skull while attempting to leave defendant's car in the course of an argument. Allegedly this contributed to her mental disorder which was later diagnosed as a schizoid personality type. In 1959 she underwent psychiatric treatment at the Mental Hygiene Clinic in Aberdeen, Maryland. She complained of nervousness and told the examining doctor 'I feel like hurting my children.' This sentiment sometimes took the form of sadistic 'discipline' toward their very young children. Nevertheless, upon her discharge from the Clinic, the doctors considered her much improved. With this background we come to the immediate events of the crime.

In January, 1962, defendant was selected to attend an electronics school in Winston-Salem, North Carolina, for nine days. His wife greeted this news with violent argument. Immediately prior to his departure for Winston-Salem, at the suggestion and request of his wife, he put a loaded .22 calibre pistol on the [412 Pa. 529] window sill at the head of their common bed, so that she would feel safe. On the evening of January 16, 1962, defendant returned home and told his wife that he had been temporarily assigned to teach at a school in Chambersburg, which would necessitate his absence from home four nights out of seven for a ten [194 A.2d 914] week period. A violent and protracted argument ensued at the dinner table and continued until four o'clock in the morning.

Defendant's own statement after his arrest details the final moments before the crime: 'We went into the bedroom a little before 3 o'clock on Wednesday morning where we continued to argue in short bursts. Generally she laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.'^[2]

Defendant's testimony at the trial elaborated this theme. He started to think about the children, 'seeing my older son's feet what happened to them. I could see the bruises on him and Michael's chin was split open, four stitches. I didn't know what to do. I wanted to help my boys. Sometime in there she said something in there, she called me some kind of name. I kept thinking of this. During this time I either thought or felt--I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun--I saw my hand move, the next thing--the only thing I can recollect after that is right after [412 Pa. 530] the shots or right during the shots I saw the gun in my hand just pointed at my wife's head. She was still lying on her back--I mean her side. I could smell the gunpowder and I could hear something--it sounded like running water. I didn't know what it was at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before. * * *'

'Q. At the time you shot her, Donald, were you fully aware and intend to do what you did?

'A. I don't know positively. All I remember hearing was two shots and feeling myself go cold all of a sudden.'

Shortly thereafter defendant wrapped his wife's body in a blanket, spread and sheets, tied them on with a piece of plastic clothesline and took her down to the cellar. He tried to clean up as well as he could. That night he took his wife's body, wrapped in a blanket with a rug over it to a desolate place near a trash dump. He then took the children to his parents' home in Magnolia, New Jersey. He was arrested the next Monday in Chambersburg where he had gone to his teaching assignment.

Although defendant's brief is voluminous, the narrow and only questions which he raises on this appeal are as hereinbefore quoted. Both are embodied in his contention that the crime amounted only to second degree murder and that his conviction should therefore be reduced to second degree or that a new trial should be granted.

The applicable principles of law are well settled, but because they are so frequently misunderstood or misapplied or overlooked, we deem it wise to restate them. Many of them are set forth and reaffirmed in Commonwealth v. Gooslin, 410 Pa. 285, pages 286, 288, 289, 189 A.2d 157, 158, where the Court said:

'* * * 'Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. 'Murder', * * * 'is defined as an [412 Pa. 531] unlawful killing of another with malice aforethought, express or implied.' The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate [and] premeditated killing, or any murder which shall be [194 A.2d 915] committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping],^[3] is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of 1939, June 24, supra.^[4]

"Malice express or implied is [the hallmark] the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Malice is present if the defendant had an intent to do the deceased serious bodily harm: Commonwealth v. Drum, supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125]. * * *

"'The test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial--is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, * * *. [citing numerous authorities].

"'* * * 'It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that [412 Pa. 532] of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict. [citing numerous authorities].''"'

'In Commonwealth v. Kravitz, 400 Pa. 198, page 208, 161 A.2d 861, page 865, the Court said: "'* * * Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. '* * * It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. [citing numerous authorities].'""

In Commonwealth v. Tyrrell, 405 Pa. 210, pages 212-213, 174 A.2d 852, 853, the Court said: 'The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being. Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Dorazio, 365 Pa. [291, 74 A.2d 125] supra; Commonwealth v. Malone, 354 Pa. [180, 47 A.2d 445] supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A.2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.'

The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth [412 Pa. 533] v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317.

[194 A.2d 916] It is well settled that a jury or a trial Court can believe all or a part of or none of a defendant's statements, confessions or testimony, or the testimony of any witness: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwalth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 supra; Commonwealth v. Donough, 377 Pa. 46, 50, 103 A.2d 694; Commonwealth v. Homeyer, 373 Pa. 150, 153, 94 A.2d 743; Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455; Commonwealth v. Shults, 221 Pa. 466, 70 A. 823.

It we consider only the evidence which is favorable to the Commonwealth, it is without the slightest doubt sufficient in law to prove first degree. However, even if we believe all of defendant's statements and testimony, there is no doubt that this killing constituted murder in the first degree. Defendant first urges that there was insufficient time for premeditation in the light of his good reputation. This is based on an isolated and oft repeated statement in Commonwealth v. Drum, 58 Pa. 9, 16, that "no time is too short for a wicked man to frame in his mind the scheme of murder." Defendant argues that, conversely, a long time is necessary to find premeditation in a 'good man.' We find no merit in defendant's analogy or contention. As Chief Justice MAXEY appropriately and correctly said in Commonwealth v. Earnest, 342 Pa. 544, pages 549-550, 21 A.2d 38, page 40: 'Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, wilful, deliberate and premeditated. * * * As Justice Agnew said in Com. v. Drum: 'The law fixes upon [412 Pa. 534] no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.''

Defendant further contends that the time and place of the crime, the enormous difficulty of removing and concealing the body, and the obvious lack of an escape plan, militate against and make a finding of premeditation legally impossible. This is a 'jury argument'; it is clear as crystal that such circumstances do not negate premeditation. This contention of defendant is likewise clearly devoid of merit.

Defendant's most earnestly pressed contention is that the psychiatrist's opinion of what defendant's state of mind must have been and was at the time of the crime, clearly establishes not only the lack but also the legal impossibility of premeditation. Dr. Davis, a psychiatrist of the Allegheny County Behavior Clinic, testified that defendant was 'for a number of years * * * passively going along with a situation which he * * * [was] not controlling and he * * * [was] not making any decisions, and finally a decision * * * [was] forced on him * * *. He had left the military to take this assignment, and he was averaging about nine thousand a year; he had a good job. He knew that if he didn't accept this teaching assignment in all probability he would be dismissed from the Government service, and at his age and his special training he didn't know whether he would be able to find employment. More critical to that was the fact that at this point, as we understand it, his wife issued an ultimatum that if he went and gave this training course she would leave him * * *. He was so dependent upon her he didn't want her to leave. He couldn't make up his mind what to do. He was trapped * * *.'

The doctor then gave his opinion that 'rage', 'desperation', and 'panic' produced 'an impulsive automatic [412 Pa. 535] reflex type of homicide, * * * as opposed to an intentional premeditated type of homicide. * * * Our feeling was that if this gun had fallen to the floor he wouldn't have been able to pick it up and consummate that homicide. And I think if he had to load the [194 A.2d 917] gun he wouldn't have done it. This is a matter of opinion, but this is our opinion about it.'

There are three answers to this contention. First, as we have hereinbefore stated, neither a Judge nor a jury has to believe all or any part of the testimony of the defendant or of any witness. Secondly, the opinion of the psychiatrists was based to a large extent upon statements made to them by the defendant, which need not be believed and which are in some instances opposed by the facts themselves. Thirdly, a psychiatrist's opinion of a defendant's impulse or lack of intent or state of mind is, in this class of case, entitled to very little weight, and this is especially so when defendant's own actions, or his testimony or confession, or the facts themselves, belie the opinion.

The rule regarding the weight of expert testimony in this class of case is well settled. '* * * '[E]xpert testimony is entitled to little weight as against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insufficient or (partly) erroneous facts or a feigned state of mind or an inaccurate past history, or upon unreasonable deductions, * * *.' [Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258; Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A.2d 472]' Commonwealth v. Jordan, 407 Pa. 575, 583, 181 A.2d 310, 314.

In Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98, we held that the jury was free to disregard expert psychiatric testimony that defendant was insane at the time of commission of the killing,--which would have acquitted the defendant under the M'Naghten Rule--in the face of testimony by lay witnesses [412 Pa. 536] who actually observed him and considered him to be sane at times when he was allegedly insane. Mr. Justice EAGEN, speaking for the Court, said (pages 259-260 of 401 Pa., page 107 of 164 A.2d): '* * * '* * * It must be kept in mind that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observations of his actions.'' See to the same effect: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728, supra; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287, supra.

Defendant's own statement after his arrest, upon which his counsel so strongly relies, as well as his testimony at his trial, clearly convict him of first degree murder and justify the finding and sentence of the Court below. Defendant himself described his actions at the time he killed his wife. From his own statements and from his own testimony, it is clear that, terribly provoked by his allegedly nagging, belligerent and sadistic wife,^[5] defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife. There is no doubt that this was a wilful, deliberate and premeditated murder.

While defendant makes no contention that he was insane at the commission of the murder or at any time, what this Court said in Commonwealth v. Tyrrell, supra, 405 Pa. 210, pages 220-221, 174 A.2d 852, pages 856-857^[6] is equally appropriate here:

'Defendant's psychiatrist did not testify that the defendant was insane. What he did say was that because defendant's wife frequently picked on him and just before the killing insulted or goaded him, defendant [412 Pa. 537] had an emotional impulse to kill her which he could not resist.

'* * * society would be almost completely unprotected from criminals if the [194 A.2d 918] law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree. In the times in which we are living, nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed with resultant emotional upset feelings and so-called blind impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determining criminal responsibility to the psychiatrist. In such event, the test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment. "* * * Only a short time ago that concept [of irresistible impulse] was emphatically presented as an example of the 'uniform' opinion of psychiatrists on criminal responsibility; and yet today, 'irresistible impulse' is rejected by most psychiatrists as unsound * * *' [Professor] Hall, 'Psychiatry and Criminal Responsibility,' 65 Yale L.J. 761, 762 (1956).' State of New Jersey v. Lucas, 30 N.J. 37, 152 A.2d 50, 68.'

Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.

Since this is a case of murder, we have carefully reviewed the record.^[7] It is crystal clear, from the record, [412 Pa. 538] that defendant was justifiably convicted of murder in the first degree.

Judgment and sentence affirmed.

JONES and COHEN, JJ., concur in the result.

---------------

[1] Italics throughout, ours.

[2] When pressed on cross-examination defendant approximated that five minutes elapsed between his wife's last remark and the shooting.

[3] Also where death results from the malicious wrecking of a train. Act of June 24, 1939, P.L. 872, § 919, 18 P.S. § 4919.

[4] P.L. 872, as amended, § 701, 18 P.S. § 4701.

[5] While this picture of his wife is different from that depicted by her neighbors, if defendant's version is true, the remedy lies in a commutation by the Board of Pardons and not by a disregard of the law by the Courts.

[6] In the body of the Opinion and in the footnote.

[7] As required by the Act of February 15, 1870, P.L. 15, 19 P.S. § 1187.

321 Md. 532
583 A.2d 718

Steven Saunders Girouard
v.
State of Maryland.

No. 65, Sept. Term, 1989.
Court of Appeals of Maryland.
Jan. 8, 1991.

Defendant was convicted before the Circuit Court for Montgomery County, James S. McAuliffe, J., of second [533] degree murder, and he appealed. The Court of Special Appeals affirmed, and defendant petitioned for certiorari. The Court of Appeals, Cole, J., held that: (1) words alone are not adequate provocation to mitigate murder to manslaughter, and (2) taunting words of wife in course of domestic argument were not provocation adequate to reduce second degree murder charge to voluntary manslaughter, as provocation was not enough to cause reasonable man to stab wife 19 times.

Affirmed.

[534] Nancy S. Forster, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, J. Theodore Wiesman, Dist. Public Defender, all on brief), Baltimore, for petitioner.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE and RODOWSKY, JJ., and COLE,^[**] ADKINS,^[*] BLACKWELL^[*] and MARVIN H. SMITH (retired), Court of Appeals Judges, Specially Assigned.

COLE, Judge.

In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

[535] On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.

Joyce followed him into the bedroom, stepped up onto the bed and onto Steven's back, pulled his hair and said, "What are you going to do, hit me?" She continued to taunt him by saying, "I never did want to marry you and you are a fuck and you remind me of my dad."^[1] The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you to do?” Receiving no response, she continued her attack. She added that she had filed charges against him in the Judge Advocate General's Office (JAG) and that he would probably be court martialed.^[2]

When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she [536] had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a mistake, that she did not love him and that the divorce would be better for her.

After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood.  Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.

At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch  with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven's personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife's behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, [537] testified that Joyce had a “compulsive need to provoke jealousy so that she's always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant’s or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no list of legally adequate provocations, the common law developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation.

According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argu [538] ment ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v.Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874). Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (Emphasis in original). Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988). See also, State v. Faulkner, supra; State v. Ward, supra; Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970).

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. See State v. Faulkner, 301 Md. at 486, 483 A.2d 759. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. See, e.g., 40 C.J.S. Homicide § 50 at 915-16 (1944). Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. State v. Faulkner, 302 Md. at 486, 483 A.2d 759.

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay [539] the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been  adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been causal connection between the provocation, the passion, and the fatal act.

Sims v. State, 319 Md. 540, 551, 573 A.2d 1317 (1990); Glenn v. State, 68 Md.App. 379, 406, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); Carter v. State, 66 Md.App. 567, 571, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 466,374 A.2d 384 (1977); Whitehead v. State, Md.App. at 11, 262 A.2d 316.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be “’calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’” Carter v. State, 66 Md.App. at 572, 505 A.2d 545 quoting R. Perkins, Perkins on Criminal Law at p. 56 (2d ed. 1969). The issue we must resolve, then, is whether the taunting words by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her.  Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

[540] Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that "[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray and standing alone, do not constitute adequate provocation.” Id. at 552, 573 A.2d 1317. That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.

In Lang v. State, 6 Md.App. 128, 250 A.2d 276, cert. denied, 396 U.S. 971, 90 S.Ct. 457, 24 L.Ed.2d 438 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation." Id. at 132, 250 A.2d 276. Before the shooting, the victim had called the appellant "a chump" and “a chicken," dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.

The court in Lang did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Id. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven's back and pull his hair, he could not reasonably  have feared bodily harm at her hands. This, to us, is certain based on Steven's testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he 6’2” tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.

Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation.  See, e.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); [541] West v. United States, 499 A.2d 860 (D.C.App.1985); Nicholson v. United States, 368 A.2d 561 (D.C.App.1977); Hill v. State, 236 Ga. 703, 224 S.E.2d 907 (1976); Cox v. State, 512 N.E.2d 1099 (Ind. 1987); State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985); State v. Hilliker, 327 A.2d 860 (Me. 1974); Commonwealth v. Bermudez, 370 Mass.438, 348 N.E.2d 802 (1976); Gates v. State, 484 So.2d 1002 (Miss.1986); State v. Milosovich, 42 Nev. 263, 175 P. 139 (1918); State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990); State v. Castro, 92 N.M. 585, 592 P.2d 185 (1979); State v. Best, 79 N.C.App.734, 340 S.E.2d 524 (1986); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982). One jurisdiction that does allow provocation brought about by prolonged stress, anger and hostility caused by marital problems to provide grounds for a verdict of voluntary manslaughter rather than murder is Pennsylvania. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733-84 (1987). The Pennsylvania court left the determination of the weight and credibility of the testimony regarding the marital stress and arguments to the trier of fact.

We are unpersuaded by that one case awash in a sea of opposite holdings, especially since a Maryland case counters Nelson by stating that "the long-smoldering grudge . . . may be psychologically just as compelling a force as the sudden impulse but it, unlike the impulse, is a telltale characteristic of premeditation." Tripp v. State, 36 Md. App. at 471-72, 374 A.2d 384. Aside from the cases, recognized legal authority in the form of treatises supports our holding. Perkins on Criminal Law, at p. 62, states that it is "with remarkable uniformity that even words generally regarded as 'fighting words' in the community have no recognition as adequate provocation in the eyes of the law." It is noted that

mere words or gestures, however offensive, insulting, or abusive they may be, are not, according to the great weight of authority, adequate to reduce a homicide, although committed in a passion provoked by them, from murder to manslaughter, especially when the homicide [542] was intentionally committed with a deadly weapon[.](Footnotes omitted)

40 C.J.S. Homicide §47, at 909 (1944). See also 40 Am. Jur.2d Homicide § 64, at 357 (1968).

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven's mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that "there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law." Tripp v.State, 36 Md.App. at 473, 374 A.2d 384. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the spouse.

We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.

JUDGMENT AFFIRMED WITH COSTS.

Judge ELDRIDGE concurs in the result only.

[**] Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

[*] Adkins, J., and Blackwell, J., now retired, participated in the hearing and conference of this case while active members of this Court but did not participate in the decision and adoption of this opinion.

[1] There was some testimony presented at trial to the effect that Joyce had never gotten along with her father, at least in part because he had impregnated her when she was fourteen, the result of which was an abortion.  Joyce's aunt, however, denied that Joyce's father was the of Joyce's child.

[2] Joyce lied about filing the charges against her husband.

10 Mich. 212

William Maher

v.

The People.

Supreme Court of Michigan.

May 21, 1862.

In a prosecution for an assault with intent to murder, the actual infant to kill must be found, and that under circumstances which would make the killing murder.

Malice aforethought is as essential an ingredient of the offense of murder as the act of filling, and the presumption of Innocence applies equally to both ingredients of the offense. Hence the burden of proof, as to each, rests upon the prosecution.

If a homicide be committed under the influence of passion, or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offense is manslaughter only, and not murder.

To reduce the offense to this grade, the reason must, at the time of the act, he disturbed or obscured by passion to an extent which might render an ordinary man, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment

The question as to what is an adequate or reasonable provocation, is one of fact for the jury.

So also is the question whether a reasonable time had elapsed for the passions to cool, and reason to resume its control.

Indictment for assault with intent to murder one H. The prisoner offered evidence tending to show the commission of adultery by H. with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going into the woods together under circumstances calculated strongly to impress upon MB mind the belief of an adulterous purpose; that he followed after them to the woods; that they were seen not long after coming from the woods, and that the prisoner followed on in hot pursuit, and was informed on the way that they had committed adultery on the day before; that he followed H. into a saloon, in # state of excitement, and there committed the assault. Held, that the evidence was proper, as from it it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which would have given to the homicide, had death ensued, the character of manslaughter only. Held further, that these facto, and all the circumstances which led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, and the state of mind and intention with which it was done.

The statement of the prisoner in a criminal case is for the consideration of the jury, who may give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

Heard April 19th. Decided May 21st.

Error to Houghton District Court. The case is sufficiently stated in the opinion of CHRISTIANCY J.

Buel & Trowbridge, for plaintiff in error :

1. Malice aforethought is the grand criterion which distinguishes murder from all other killings.

The quo anima, or state of mind under which the offense is committed, is always a legitimate subject of inquiry: — Bish. Or. Z. § 227; 2 Ibid. § 616; Pond v. People, 8 Mich. 150; 3 Inst. 103; Burr. Cir. Ev. 282 and n.

Accordingly the appearance of an actual necessity for taking life in self-defense, though it in fact do not exist, may justify the act; insanity may excuse it, and sudden transport of passion may mitigate it to a lesser offense. Yet each of these circumstances is a state of the mind.

The definition itself of murder requires, that it be committed by a person of sound mind and memory, and with malice aforethought: — 3 Coke's Inst. 47; 4 Bl. Com. 195. Each of these ingredients is a fact; each puts in issue the state of the mind, and each must be passed upon by the jury.

In a case of murder it is always a proper subject of inquiry, whether the accused acted from deliberation and intelligence; whether he had command of his passions and acted from a mind undisturbed; or whether reason had lost in part its sway:— 2 Bish. Or. L. §§630, 631 and n; 1 East P. C. 222; Whart. Cr. L. §§ 983, 984; Burr. Cir. Ev. 284 and n.

It is a true test of manslaughter that the homicide be committed in a sudden transport of passion arising upon a reasonable provocation, and without malice. The law requires only a reasonable provocation. The authorities use the terms adequate, sufficient and reasonable, when applied to the provocation, as equivalent: — 1 East P. G. 232. Whart. Cr. L. § 987; 2 Bish. Cr. I. §630 and n; 11 Humph. 200. A reasonable provocation, is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.

By sufficient cooling time, is meant a reasonable time; therefore, each case depends on its own circumstances:— Whart. Cr. L. § 990; 2 Bish. Cr. L. § 641; 1 Speers, 384. A reasonable cooling time, is that for which a good reason can be given, and in which the sudden transport of passion might naturally and rationally, according to the laws of the human mind, pass away.

2. Acting on information: " When it becomes a subject of inquiry whether a person acted bona fide, prudently or wisely, the information and circumstances on the faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecution :"— Whart. Cr. X,. § 603; 1 Greenl. Ev. §101, and n. Such evidence bears directly upon the question of malice, and state of the prisoner's mind. In the following cases of alleged murder, the parties acted under provocation arising on information which was admitted in evidence: — Gases of Jarboe, of Mercer, and of Norman, cited in Sickles' case; Boyley's case, 2 Gro. 296; Mc Whirl's case, 3 Gratt. 594.

So evidence is often admitted of information communicated to the prisoner, of prior threats against him by the assailing party. See Pond's case, 8 Mich. 153.

3. As to the taking in the act; the law does not require that the husband stand by and actually see the adulterous act.

Adultery can always be proved by facts and circumstances. Those offered in this case transpired under the eyes of the accused; they tended to establish a taking in the act, within the meaning of the law. Would a blind man be without protection when his remaining senses leave no room for doubt?

A mistake may exist; still "the guilt of the accused must depend upon the circumstances as they appear to him." One may act in self-defense upon reasonable grounds for believing that the danger is actual and imminent, though he be mistaken:—Pond's case, 8 Mich. 150.

So too, an insane delusion or belief may exist, as to unreal facts, which will justify or excuse a homicide committed under its influence, if, being real, they would have that effect: — 1 JBish. Cr. L. § 235.

4. As to the res gestae: most of the matters offered and excluded immediately preceded the assault, tended to illustrate it, were directly connected with it as its cause, and with it constituted one continuing occurrence. They were, therefore, clearly admissible in evidence as belonging to the res gestae: — Potter's case, 5 Mich. 5; 1 Greenl. Ev. § 108 and n.

They belong to the class of concomitant circumstances, 'which include those immediately following and preceding the criminal act, as well as those strictly contemporaneous with it : — Burr. Cir. Ev. 368.

G. Upson, Attorney General, for the People :

If a husband find his wife in the act of adultery, and, provoked by the wrong, instantly takes the life of the adulterer, the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act. In all cases the party must see the act done, and if, after merely hearing of, or suspecting such an outrage, the wronged individual immediately takes vengeance on the other, by pursuing and killing him, his offense is murder : — Foster, 296; T. JRaym. 212; 1 Vent. 158; 1 East P. G. 234; 8 C. & P. 182; 2 C. & K. 814; 3 Graft. 594; 8 Ired. Law, 330; 1 Buss, on Or. 525 and 581; 2 Bish. Cr. Z. §638 and notes 2, 3 and 4; -Whar. Cr. L. § 984 and n. a, Uh ed.

The books which speak of the slaying of the adulterer by the husband as only manslaughter under certain circumstances, all instance the case where he finds the adulterer in the act of adulterous intercourse with his wife, and immediately kills him; but none of the cases speak of thus justifying the killing of a person by the husband, on account of information or suspicion of acts of adultery committed with his wife. Most of them expressly say that in all such circumstances the killing would be murder. See particularly on this point the language of the Court in 8 Car. & P. 182, and 2 C. & K. 814, above quoted.

CHRISTIANCY, J.

The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of his sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way t o the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner's wife had had sexual intercourse the day before in the woods- This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder ? If the homicide—in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.

Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facit reum nisi mens sit rea." People v Pond, 8 Mich. 150.

To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime c m not exist; and, as every man is presumed innocent of the offense with which h e is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense—to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, re«is equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, a^ presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist. I do not here speak of those cases in which the death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.

But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool End reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.

To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. " W e must therefore endeavor to discover the principle upon which the question is to be determined. It "will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition: State v. Hill, 1 Dev. & Sat. 491; Haile v. State, 1 Swan, 2 4 8; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent t o utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal. There are many cases t o be found in the books in which this consideration, plain as it would seem t o be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was between murder and excusable homicide.

The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them—not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard—unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.

The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, lie may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular ca«e. ' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1800, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be hold to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. I n such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for the jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Hex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th e<£, § 990 and cases cited. I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear. And in cases of applications, for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.

It remains only to apply these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the j u r y to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.

But there is still a further reason why the evidence should have been admitted. N o other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the j u r y were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may be to establish guilt or innocence; but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor's case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by analogy, Holders case, 8 O. & P. 606; Stoner's case, 1 C & K. 650; Chapmarts case, 8 C. & P. 559; Orchard's case, Ibid, note; Roscoe Cr. Ev.). 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. I n the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. §29. But however this may be, it was clearly competent for the defendant to 6how the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected. After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner's counsel requested the Court to charge, that the prisoner's statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner's counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner's -wife; but that where there were facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner's statement in considering the evidence, and give it such weight as they thought proper.

The only substantial error of the Court in relation to this " statement," is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner's wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. " Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

The judgment should be reversed, and a new trial granted.

MARTIN C. J. and CAMPBELL J. concurred.

J.: MANNING

I differ from my brethren in this case. I think the evidence was properly excluded. To make that manslaughter which would otherwise be murder, the provocation—I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. PAKK J. in Regina v. Fisher, 8 C. & JP. 182, in speaking of the cause of provocation says, " I n all cases the party must see the act done." Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fislier, 8 G. cb P. 182; Regina v. Kelly, 2 C. d> K. 814; and State v. John, 8 Ired. 330.

I think the judgment should be affirmed.

Judgment reversed, and new trial ordered.

354 Pa. 180
47 A.2d 445

COMMONWEALTH
v.
MALONE.

Supreme Court of Pennsylvania.

May 27, 1946.

Appeal No. 230, January term, 1945, from judgment of sentence of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, Lancaster County, June term, 1945, No. 1; Wissler, Judge.

James J. Malone was convicted of second-degree murder, and he appeals.

Affirmed, and record remitted. [47 A.2d 446]

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, and STEARNE, Jj.

W. Hensel Brown, of Lancaster, for appellant.

John L. Hamaker, of Lancaster, for appellee.

MAXEY, Chief Justice.

This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.

On the evening of February 26th, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.

After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play ‘Russian Poker.’ ¹ Long replied; ‘I don't care; go ahead.’ [47 A.2d 447]

The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: ‘Oh! Oh! Oh!’ and Malone said: ‘Did I hit you, Billy? Gee, Kid, I'm sorry.’ Long died from the wounds two days later.

The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not ‘expect to have the gun go off.’ He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.

Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the ‘grand criterion’ which ‘distinguished murder from other killing’ was malice on the part of the killer and this malice was not necessarily ‘malevolent to the deceased particularly’ but ‘any evil design in general; the dictate of a wicked, depraved and malignant heart’; 4 Blackstone 199. Among the examples that Blackstone cites of murder is ‘coolly discharging a gun among a multitude of people,’ causing the death of someone of the multitude.

In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507, 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or frame of mind termed malice.' ² This court has declared that if a driver ‘wantonly, recklessly, and in disregard of consequences' hurls ‘his car against another, or into a crowd’ and death results from that act ‘he ought * * * to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun’: Com. v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688, citing cases from four jurisdictions.

In Com. v. Hillman, 189 Pa. 548, 42 A. 196, 69 Am.St.Rep. 827, the charge of the court below was approved by this court. In that charge appears this statement: ‘Malice in law means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice.’

In Com. v. Knox, 262 Pa. 428, 105 A. 634, 636, the following instructions by the trial judge in a murder case was held by this court not to be error: ‘When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.’ In Com. v. Arnold, 292 Pa. 210, at page 213, 140 A. 898, at page 899, this court said: ‘Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime.’

Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the [47 A.2d 448] jury to the defendant's prejudice. For example, the trial judge said: ‘All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence.’ The second sentence after this one reads as follows: ‘Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed * * * as a presumption of fact.’ A homicide may be unlawful without being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that ‘all unlawful homicide is presumed to be malicious and, therefore, murder,’ careful trial judges always qualify that statement, as Chief Justice Agnew did in Com. v. Drum, 58 Pa. 9, at page 17, where he said: ‘All murder * * * includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty.’ Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: ‘This presumption of malice does not rise, however, until the Commonwealth has made out a prima facie case of felonious homicide.’ This statement was in accord with what Mr. Justice Stern, speaking for this court, said in Com. v. Wucherer, 351 Pa. 305, at page 310, 41 A.2d 574, at page 576, to wit: ‘It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide.’ Defendant's rights were fully protected by the charge in its totality.

However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: ‘It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case.’ This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killing was intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree.

The trial judge also erred in charging that ‘A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental’. Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was. ³ In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing [47 A.2d 449] that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intention to kill Long is accepted (as the jury accepted it). The way the trial judge used the word ‘accidental’ throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, ‘the defendant cannot be convicted of any offense’ (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions.

In another portion of the charge, the trial judge said to the jury: ‘If you believe the testimony of the defendant, that the shot was accidental and without intention on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant’. There was not in this record any evidence which would warrant a finding that ‘the shot was accidental’. Later the judge instructed the jury that ‘If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out’. What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.

This court said in Sears v. Birbeck, 321 Pa. 375, 383, 184 A. 6, 10: ‘It is a primary duty of the trial judge-a duty that must never be ignored-in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide.’ When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations ⁴ to help make clear to the jury what the issues are which the jury is to decide and how to apply legal principles to the facts so as to reach a just verdict.

The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.

All the assignments of error are overruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.

--------

Notes:

¹It has been explained that ‘Russian Poker’ is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.

²These quoted phrases are from the opinion of Chief Justice Agnew in Com. v. Drum, 58 Pa. 9.

³If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though death was ‘accidental’ in the sense that it was not intended by A. The difference between intentional means and ‘accidental’ results is discussed in Arnstein v. Metropolitan L. Ins. Co., 329 Pa. 158, at page 162, 196 A. 491, and in O'Neill et al. v. Metropolitan Life Ins. Co., 345 Pa. 232, at page 237, 26 A.2d 898, at page 901, 142 A.L.R. 735, Footnote 1.

⁴In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice Gibson in charging the jury used an illustration to make clear to the jury why evidence should not be discredited because it was circumstantial, and that even so-called ‘positive’ evidence was to a certain degree inferential in nature, i.e., circumstantial. In the famous case of Com. v. Webster, 5 Cush., Mass., 295, 311, 52 Am.Dec. 711, Chief Justice Shaw of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: ‘When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped.’

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316 Mass. 383

COMMONWEALTH

vs.

BARNETT WELANSKY

(and a companion case against the same defendant).

June 5, 1944

Supreme Judicial Court of Massachusetts, Suffolk

Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, & SPALDING, JJ. 

At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system . . . [he] had would continue" during his absence.

A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.

No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a [384] night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.

Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.

The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J.

Discussion by LUMMUS, J., of wanton or reckless conduct.

At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wantonor reckless conduct. Per LUMMUS, J.

One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.

To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.

No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.

At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.

One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.

Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of [385] the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.

The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.

The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:

106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."

108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."

111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."

105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.

[386] 109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths."

114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."

122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."

The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.

D. J. Gallagher, (H. F. Callahan, E. M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.

F. T. Doyle, Assistant District Attorney, (J. K. Collins & A. H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.

LUMMUS, J.

On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, [387] since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478.

The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant [388] last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.

The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.

If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its [389] equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.

It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.

Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.

From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.

That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.

(1) A door, opening outward to Piedmont Street, two [390] and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked "Exit" by an electric sign. It was equipped with a "panic" or "crash" bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.

(2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.

(3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked "Exit" by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with "panic" bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, [391] 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic" doors were hidden from the view of diners by a pair of "Venetian" wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the "panic" doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.

(4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.

(5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.

We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded." Beverley v. Boston Elevated Railway, 194 Mass. 450 , 457. Witnesses were rightly permitted to give theirestimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred [392] to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.

A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

The door at the head of the Melody Lounge stairway [393] was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

I. The pleadings, verdicts, and judgments.

The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe," "John Doe," or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273 , 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding. Some other specifications -- such as failure to prevent the unlawful employment of minors -- plainly had little or no relation [394] to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what "provisions of" the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.

The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did "wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said" victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.

Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did "maintain, [395] manage, operate and supervise certain premises," describing them, "and solicited and invited the patronage of the public to the said premises"; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did "assault and beat" the said victim, and by said assault and beating did kill him "by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises." Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.

Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted "on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa." That count followed the form of an indictment for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 . Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.

The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be "fully, plainly, substantially and formally set out," as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, Section 40. Commonwealth v. Snell, 189 Mass. 12 , 18, 19. Commonwealth v. Sinclair, 195 Mass. 100 , [396] 105-108. Commonwealth v. Massad, 242 Mass. 532 . Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379 , 384. Commonwealth v. Bartolini, 299 Mass. 503 , 509. Commonwealth v. Hayes, 311 Mass. 21 . The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567 , 571. Commonwealth v. Lammi, 310 Mass. 159 . For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged." Commonwealth v. Hayes, 311 Mass. 21 , 25. Commonwealth v. Gedzium, 259 Mass. 453 , 457. Commonwealth v. Albert, 307 Mass. 239 , 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35 , 38, 39.

The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, Section 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3. The cases come here under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.

II. The principles governing liability.

The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary [397] manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct. ^[1]

Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, ^[2] wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, Section 500. 26 Am. Jur. Homicide, Sections 205-208. 29 C. J. 1154, et seq.

To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367 , 370. Commonwealth v. Arone, 265 Mass. 128 , 132. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces [398] something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588 , 592. Banks v. Braman, 188 Mass. 367 , 369. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165 . Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367 , 369. Romana v. Boston Elevated Railway, 218 Mass. 76 , 83. Commonwealth v. Peach, 239 Mass. 575 . Nash v. United States, 229 U.S. 373, 377. Arizona Employer's Liability Cases, 250 U.S. 400, 432. Am. Law Inst. Restatement: Torts, Section 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311 . The judge charged the jury correctly when he said, "To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal [399] man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."

The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, Section 500. LeSaint v. Weston, 301 Mass. 136 , 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271; Freeman v. United Fruit Co. 223 Mass. 300 , 302; Banks v. Braman, 188 Mass. 367 , 369; Yancey v. Boston Elevated Railway, 205 Mass. 162 , 171; Burns's Case, 218 Mass. 8 , 10; Romana v. Boston Elevated Railway, 218 Mass. 76 , 83; Sullivan v. Napolitano, 277 Mass. 341 , 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328 , 347. Commonwealth v. Horsfall, 213 Mass. 232 , 235. Cohen v. Davies, 305 Mass. 152 , 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92 , 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.

The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367 . Cotter, petitioner, 237 Mass. 68 , 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244 , 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 , 242; S. C. 241 Mass. 100 , 102. McIntyre v. Converse, [400] 238 Mass. 592 , 594. Young v. Worcester, 253 Mass. 481 , 484. Potter v. Gilmore, 282 Mass. 49 , 57. Am. Law Inst. Restatement: Torts, Section 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 ; S. C. 241 Mass. 100 . Compare Jamison v. Encarnacion, 281 U.S. 635; Alpha Steamship Corp. v. Cain, 281 U.S. 642. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other." Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Romana v. Boston Elevated Railway, 226 Mass. 532 , 536.

Notwithstanding language used commonly in earlier cases, and occasionally in later ones, ^[3] it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence." Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. [401] Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. McIntyre v. Converse, 238 Mass. 592 , 594. Sullivan v. Napolitano, 277 Mass. 341 . Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 387. Baines v. Collins, 310 Mass. 523 , 526. Am. Law Inst. Restatement: Torts, Section 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Gorman, 288 Mass. 294 , 299. Commonwealth v. McCan, 277 Mass. 199 , 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5; Commonwealth v. Velleco, 272 Mass. 94 , 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 , 553. Commonwealth v. Parsons, 195 Mass. 560 , 569. Commonwealth v. Peach, 239 Mass. 575 . Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .

To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

III. The alleged errors at the trial.

1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and [402] should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.

2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478. Commonwealth v. Beal, 314 Mass. 210 , 222. Braga v. Braga, 314 Mass. 666 , 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case "closely," as the phrase is, with respect to a point that later he had to admit.

3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the [403] corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.

4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, Section 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483 . Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297 , 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177 . Carroll v. Hemenway, 315 Mass. 45 , 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222 , 224. Commonwealth v. Arone, 265 Mass. 128 , 131. Carroll v. Hemenway, 315 Mass. 45 . People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, Section 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551 , 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 390.

5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the [404] electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.

6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.

Judgments affirmed.

FOOTNOTES

[1] In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick, & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court. The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N. Y. 487. State v. Ireland, 126 N. J. L. 444. The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Penn. Dist. R. 149. See also Miller v. Strahl, 239 U.S. 426.

[2] Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84 . Keith v. Granite Mills, 126 Mass. 90 . Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90. Huda v. American Glucose Co. 154 N. Y. 474. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100 ; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 . In Cloutier v. Oakland Park Amusement Co. 129 Maine, 454, the court failed to distinguish between such cases and the case of an invited business visitor.

[3] In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130 , 134, and Banks v. Braman, 188 Mass. 367 , 370. So in criminal cases what was necessary to make conduct criminal was often so described. The expression "criminal negligence" was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415 . Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 . Lanci v. Boston Elevated Railway, 197 Mass. 32 , 35. Romana v. Boston Elevated Railway, 218 Mass. 76 , 84. Commonwealth v. McCan, 277 Mass. 199 , 203. At least one statute purports to impose criminal liability for "gross negligence." G. L. (Ter. Ed.) c. 265, Section 30. Whether that expression really means wanton or reckless conduct has not been decided.

In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N. Y. 451. Regina v. Elliott, 16 Cox C. C. 710. People v. Burgard, 377 Ill. 322. People v. Lynn, 385 Ill. 165. State v. Cope, 204 N. C. 28. State v. Studebaker, 334 Mo. 471. State v. Sawyers, 336 Mo. 644. Bell v. Commonwealth, 170 Va. 597. State v. Whatley, 210 Wis. 157; 99 Am. L. R. 749. 29 C. J. 1154, et seq.

[207] COUNSEL

Luke McKissack, under appointment by the Court of Appeal, Belli, Ashe, Ellison, Choulos & Lieff and Robert L. Lieff for Defendants and Appellants.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark W. Jordan, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

COBEY, Acting P.J.

These are appeals by Jonathan Earl Stamp, Michael John Koory and Billy Dean Lehman, following jury verdicts of guilty of robbery and murder, both in the first degree. Each man was given a life sentence on the murder charge together with the time prescribed by law on the robbery count.

Defendants appeal their conviction of the murder of Carl Honeyman who, suffering from a heart disease, died between 15 and 20 minutes after Koory and Stamp held up his business, the General Amusement Company, on October 26, 1965, at 10:45 a.m. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery; several weeks later Stamp was arrested in Ohio and Koory in Nebraska.

Broadly stated, the grounds of this appeal are: (1) insufficiency of the evidence on the causation of Honeyman's death; (2) inapplicability of the felony-murder rule to this case; (3) errors in the choice of instructions given and refused; and (4) erroneous admission in evidence of the extrajudicial confessions of Stamp and Koory and the incriminating statement of Lehman.

On this appeal appellants primarily rely upon their position that the felony-murder doctrine should not have been applied in this case due to the unforeseeability of Honeyman's death.

THE FACTS^[1]

Defendants Koory and Stamp, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement [208] Company, ordered the employees they found there to go to the front of the premises, where the two secretaries were working. Stamp, the one with the gun, then went into the office of Carl Honeyman, the owner and manager. Thereupon Honeyman, looking very frightened and pale, emerged from the office in a "kind of hurry." He was apparently propelled by Stamp who had hold of him by an elbow.

The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door. As the robbers, who had been on the premises 10 to 15 minutes, were leaving, they told the victims to remain on the floor for five minutes so that no one would "get hurt."

Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble "keeping the pounding down inside" and that his heart was "pumping too fast for him." A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee's office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner's report listed the immediate cause of death as heart attack.

The employees noted that during the hours before the robbery Honeyman had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man, with a history of heart disease, who was under a great deal of pressure due to the intensely competitive nature of his business. Additionally, he did not take good care of his heart.

Three doctors, including the autopsy surgeon, Honeyman's physician, and a professor of cardiology from U.C.L.A., testified that although Honeyman had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system which precipitated the attack. It was their conclusion in response to a hypothetical question that but for the robbery there would have been no fatal seizure at that time. The fright induced by the robbery was too much of a shock to Honeyman's system. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal.

[209] 

SUFFICIENCY OF THE EVIDENCE RE CAUSATION

(1a) Appellants' contention that the evidence was insufficient to prove that the robbery factually caused Honeyman's death is without merit. (2) The test on review is whether there is substantial evidence to uphold the judgment of the trial court, and in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. (People v. Redmond, 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) (1b) A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.^[2]

APPLICATION OF THE FELONY-MURDER RULE

Appellants' contention that the felony-murder rule is inapplicable to the facts of this case is also without merit. (3) Under the felony-murder rule of section 189 of the Penal Code, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314 [57 Cal. Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal. App.2d 324, 328 [52 Cal. Rptr. 329].) (4a) People v. Washington, 62 Cal.2d 777, 783 [44 Cal. Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or [210] his accomplice acting in furtherance of their common design. (See People v. Gilbert, 63 Cal.2d 690, 705 [47 Cal. Rptr. 909, 408 P.2d 365].)

(5) The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life.^[3] (See People v. Sears, 62 Cal.2d 737, 745 [44 Cal. Rptr. 330, 401 P.2d 938]; People v. Phillips, 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; People v. Washington, supra, at p. 780.) This rule is a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or the implied malice which is manifested in an intent to kill. (People v. Lilliock, 265 Cal. App.2d 419, 431 [71 Cal. Rptr. 434].) (6) Under this rule no intentional act is necessary other than the attempt to or the actual commission of the robbery itself. When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime. (People v. Ketchel, 71 Cal.2d 635, 642 [79 Cal. Rptr. 92, 456 P.2d 660]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].)

(4b) There is no requirement that the killing occur, "while committing" or "while engaged in" the felony, or that the killing be "a part of" the felony, other than that the few acts be a part of one continuous transaction. (People v. Chavez, 37 Cal.2d 656, 670 [234 P.2d 632].) Thus the homicide need not have been committed "to perpetrate" the felony. There need be no technical inquiry as to whether there has been a completion or abandonment of or desistance from the robbery before the homicide itself was completed. (People v. Chavez, supra, at pp. 669-670.)

(7a) The doctrine is not limited to those deaths which are foreseeable. (See 1 Witkin, Cal. Crimes (1963) §§ 78, 79, pp. 79-80; People v. Chavez, supra, at pp. 669-670.) Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. (People v. Talbot, 64 Cal.2d 691, 704 [51 Cal. Rptr. 417, 414 P.2d 633].) As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. (8) So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber's ignorance of it, in no way destroys the robber's criminal responsibility for the death. (Cf. People v. [211] Moan, 65 Cal. 532, 536-537 [4 P. 545]; People v. Studer, 59 Cal. App. 547, 552-554 [211 P. 233].) So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. (People v. Phillips, supra, at p. 579.) In this respect, the robber takes his victim as he finds him.

CLAIMED ERRORS IN INSTRUCTIONS

Appellants claim five errors in the jury instructions given and refused. They argue that: (1) the trial court erred in refusing to give their proffered instruction as to proximate cause; (2) the jury should have been instructed on the court's own motion that there must be a finding of specific intent to commit the robbery before the felony-murder rule can be applied; (3) the jury should not have been instructed on the felony-murder rule; (4) the jury should have been instructed on the matter of foreseeability; and (5) the felony-murder rule applies only when the killing was committed in order to perpetrate a felony, and not when the killing occurs merely in the perpetration of a felony. (1c, 4c, 7b) In accordance with our discussion of the felony-murder doctrine, we find the claimed instruction errors numbered (3), (4), and (5) to be without merit.

(9) Appellants contend that the trial court erred in refusing their proffered instruction on proximate cause, reading as follows: "Where the defendant's criminal act is not the proximate cause of the death and the sole proximate cause was the negligent or reckless conduct of the victim, a conviction is unwarranted." They assert that article VI, section 13 of the California Constitution guarantees the right of a defendant to have the jury determine every material issue presented by the evidence.

It can be argued that the refusal of the trial court to give the instruction was justified. The evidence before the jury was not such that the jury could have reasonably assumed that negligent or reckless conduct by Honeyman was-the sole cause of his death. (See People v. Bronson, 263 Cal. App.2d 831, 842-843 [70 Cal. Rptr. 162], hear. den.) But, in any event, the three instructions given on the issue of the proximate causation of Honeyman's death were much more complete and accurate than appellant's quoted instruction.^[4] Any error in this respect was harmless.

[212] (10) As to the second objection, since the jury was fully instructed both as to what constitutes robbery and as to what constitutes felony murder,^[5] the court was not required to instruct them on its own motion that in order to apply the felony-murder rule, appellants must have had the specific intent to commit the robbery. This is so because the jury could not have found them guilty of murder under the felony-murder doctrine without first having found them guilty of robbery. Moreover, failure to instruct the jury that in order to apply the felony-murder doctrine appellants must have had the specific intent to commit the robbery does not constitute prejudicial error where, as here, the evidence permits of no other interpretation than that appellants had the specific intent to steal. (See People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal. Rptr. 620, 388 P.2d 892].)

CLAIMED ERRONEOUS ADMISSION OF CONFESSIONS AND INCRIMINATING STATEMENT

The getaway car, driven by defendant Lehman, was stopped at 11:08 and Lehman, the only one in it at that time, was advised of his rights to counsel, [213] to remain silent and that anything he might say could be used against him prior to any in-custody interrogation. Several weeks later Koory was apprehended in Omaha, Nebraska, and Stamp in Dayton, Ohio; each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him.

(11) Appellants contend that the confessions of Koory and Stamp and the incriminating statement of Lehman were erroneously admitted in evidence because there was no affirmative showing that appellants had waived their rights to silence and counsel before giving these statements. It is also claimed that Stamp's confession is inadmissible as being the product of a prior illegally obtained confession. Since appellants failed to object on these grounds at trial, they are not entitled to raise these issues for the first time on appeal. (People v. Ray, 252 Cal. App.2d 932, 958 [61 Cal. Rptr. 1]; People v. Crooks, 250 Cal. App.2d 788, 793 [59 Cal. Rptr. 39].)

(12) On our own motion we have examined the admissibility of these out of court statements under People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]. We find no error because the trial court followed the recommended procedure in Aranda of deleting from each statement received in evidence all direct and indirect identifications of codefendants as well as any material which could be used against codefendants once their identities had been otherwise established. This objective was accomplished by the police officers stating only what the declarant said to each of them regarding the declarant's own part in the robbery. In addition the jury was instructed just prior to the admission of each statement and again at the close of the trial that each statement was received only against the particular declarant and not against any of his codefendants.

The judgment is affirmed.

Schweitzer, J., and Allport, J., concurred.

Appellants' petitions for a hearing by the Supreme Court were denied January 28, 1970.

[1] This part of the opinion includes generally all facts relevant to appellants' contentions, except those relating to their fourth ground of appeal.

[2] Appellants' position that the medical evidence was insufficient to prove the causal link between the robbery and the death because the physicians testifying to the result did so solely in response to a hypothetical question which was erroneous and misleading, and because the doctors answered in terms of "medical probability rather than actual certainty" is not well taken. A conviction on the basis of expert medical testimony, couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt" is valid (People v. Phillips, 64 Cal.2d 574, 579, fn. 2 [51 Cal. Rptr. 225, 414 P.2d 353]) and a hypothetical question need not state all the evidence in a case so long as it does not omit essential facts and issues. This did not occur here. (See McCullough v. Langer, 23 Cal. App.2d 510, 521 [73 P.2d 649], hear. den.) Furthermore, an appellate court will not overrule a trial court on the matter of the sufficiency of the qualifications of expert witnesses in the absence of a manifest abuse of such discretion. (People v. Phillips, 64 Cal.2d 574 at pp. 578-579, fn. 1 [51 Cal. Rptr. 225, 414 P.2d 353].) An examination of the record shows that there was no such abuse by the trial court in permitting the prosecution's expert medical witnesses to testify as to the cause of the heart attack.

[3] In view of the fact that the Legislature has not seen fit to change the language of Penal Code section 189 since the decisions holding that the requisite malice aforethought is to be implied from the commission of those felonies inherently dangerous to human life, it must be presumed that these cases accurately state the law. (People v. Hallner, 43 Cal.2d 715, 720 [277 P.2d 393].)

[4] "If the death of the victim occurred by natural causes and was not a proximate result of the defendants' unlawful activity, you must find the defendants not guilty of murder.

"To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.

"The proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred. It is the efficient cause — the one that necessarily sets in operation the factors that accomplish the death." (CALJIC No. 312, modified.)

"If a person unlawfully does an act or unlawfully sets in operation factors which are a proximate cause of another person's death, such conduct of the former constitutes an unlawful homicide even though the unlawful act or the factors set in operation were not the only cause of the death, and although the person killed had been already enfeebled by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition would not have died as a result of the act or the factors set in operation, and although it is probable that the act or the factors set in operation only hastened the death of the deceased person and that he would have died soon thereafter anyhow from another cause or other causes." (CALJIC No. 313-B, modified.)

[5] "Robbery is the felonious taking of personal property of any value in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (CALJIC No. 210.)

"Robbery which is perpetrated by a person or by two or more persons any one of them being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.

"If you should find the defendant guilty of robbery, it will be your duty to determine the degree thereof as robbery of the first degree and to state that degree in your verdict." (CALJIC No. 210-A.)

"If a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of, or attempt to perpetrate, the crime of robbery, and if the killing is done in furtherance of a common design and agreement to commit such crime or is an ordinary and probable effect of the pursuit of that design and agreement, all such persons so jointly engaged are guilty of murder of the first degree, and this is the law whether such killing be intentional, unintentional, or accidental." (CALJIC No. 317.)

"Murder which is committed in the perpetration or attempt to perpetrate robbery, is murder of the first degree, whether the murder was intentional, unintentional, or accidental." (CALJIC No. 302-F, revised.)