ROBERTS v. UNITED STATES, 126 F. 897

PARDEE, Circuit Judge.

Section 5341, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3628], reads: “Manslaughter. Every person who, within any of the places or upon any of the waters described in

section fifty-three hundred and thirty-nine, unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, or otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, either on land or sea, within or without the United States, is guilty of the crime of manslaughter.” All the questions raised in the court below and assigned as error here depend for solution upon the construction — that is, the signification, purpose, and effect — of the word “willfully,” as used in the above section.

The word is in frequent use in criminal and penal statutes — sometimes alone, where its meaning is to be found in connection with a description of the act or thing prohibited, and often in connection with such words as “unlawfully,” “knowingly,” “wantonly,” and “maliciously,” where the meaning is determined by the whole context. In the above

section the word is used in connection with the words “unlawfully” and “but without malice,” and all are -evidently intended to characterize the act of striking, stabbing, wounding, or shooting, which, resulting in death, is-declared manslaughter. '“Willful” is defined by Webster: “

(1) Of set purpose; self-determined ; voluntary; as willful murder.

(2) Governed by the will without yielding to reason; obstinate; perverse; inflexible; stubborn; refractory.” But it seems clear that in the

section under consideration the purpose or determination required must not be so known, fixed, obstinate, calculated, or foreseen as to warrant therefrom the implication of malice. It is not to be overlooked that in

section 5341 Congress was differentiating manslaughter from murder on common-law lines — the two •offenses to be exactly alike, except as to the ingredient of malice. In his first charge to the jury, the trial judge, after defining manslaughter at common law, said: “In the definition of manslaughter contained in the statute, the killing must lbe done unlawfully and willfully. The term ‘unlawfully,’ as here used, means without legal excuse. The term ‘willfully’ here means done wrongfully, with evil intent.

It means any act which a person of reasonable knowledge and ability must know to be contrary to duty, and, while the act must be done with evil design and knowingly, as herein stated, still a killing which takes place under circumstances showing a reckless disregard for the life of another, and the reckless and negligent use of means reasonably calculated to take the life of another — such killing would be willfully done, as the term is herein defined.” We understand this to define “willfully” as acting voluntarily with evil intent or design, and that it may be shown by acting with reckless disregard of the life of another, coupled with the use of means reasonably calculated to take such life.

Considering that the evidence for the government showed that Roberts made an unlawful assault upon Henry Hyler with a deadly weapon, and followed up such assault by closely pursuing and intentionally shooting and killing said Hyler, and that the evidence for Roberts tended to show that while he made the assault, and pursued Henry Hyler, and intentionally fired his revolver, he did not see him, nor knowingly shoot at him, but fired as it were in the dark, with intent merely to scare and stop him, and considering that the correctness of a charge should be somewhat determined by the actual case presented, we conclude that, in the charge above referred to, the trial judge properly instructed the jury, within the true sense and meaning of

section 5341, to be applied to the case then before the court. And we think that this conclusion is fully supported by the adjudged cases. Under a statute (Clay’s Dig. p. 472, c. 15, § 4) declaring “who shall willfully maim,” etc., it was held: “If such

an act is intentionally and unnecessarily committed, there can be no doubt it is willfully committed.” State v. Abram, 10 Ala. 930, 932. “Willful” is not the synonym of “voluntary.” In truth, they express no distinct idea which is common to both. The former is a word of much greater strength than the latter. “Willful,” in regard to manslaughter, denotes government by the will, without yielding to reason; obstinate; stubborn; perverse; inflexible. McManus v. State, 36 Ala. 291.

In a statute denouncing “any person who willfully interrupts or disturbs,” etc., it was held that “the word ‘willfully’ was used as the synonym of ‘intentionally’ or ‘designedly’; ‘pursuant to intention or design, without lawful excuse.’ ” Harrison v. State, 37 Ala. 156. In a statute declaring, “whoever shall willfully obstruct any highway,” etc., “willfully” was construed to mean not only intentionally, but wrongfully, in bad faith, with evil intent or legal malice. State v. Preston, 34 Wis. 675.

Under a statute providing that “every person who shall willfully and maliciously kill, maim or disfigure horses,” etc., the word “willfully” means intentionally, and the word “maliciously” imports a criminal motive, intent, or purpose. Commonwealth v. Brooks, 9 Gray, 303. This case followed and approved in Commonwealth v. McLaughlin, 105 Mass. 463. Under a statute which provides that “if any person knowing himself not to be a qualified voter shall, at any election, willfully give in a vote,” etc. (Rev.

St. 1836, c. 4, § 6), it was held that “the admission that the defendant voted was sufficient to support the averment that he voted willfully.” The court said: “Considering the manner in which the word ‘willfully’ is used in the statute, the court are of opinion that this was right. It may sometimes mean ‘corruptly’ or ‘unlawfully,’ but in this section, where the gist of the offense consists in the clause ‘knowing himself not to be a legal voter,’ the term ‘willfully’ means ‘designedly,’ ‘purposely,’ ‘with an intent to claim and exercise,’ etc.” Commonwealth v.

Bradford, 9 Metc. (Mass.) 270. “In a penal statute the word ‘willful’ means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful.” Citing State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. Law, 96; Savage v. Tullar, Brayton, 223; United States v. Three Railroad Cars, 1 Abb. U. S. 196, Fed. Cas. No. 16,513. “In common parlance it is used in the sense of intentional, as distinguished from accidental or involuntary.

To make the killing of the sheep, therefore, a willful act, it must have been committed with an evil intent, with legal malice, and without legal justification.” Thomas v. State, 14 Tex. App. 204. To the same purport, see Sam Lane v. State, 16 Tex. App. 172; Wood v. State, Id. 574; Schubert v. State, Id. 645. See, also, Owens v. State, 19 Tex. App. 249, where the court approved “by ‘willfully,’ as used in this charge, is meant that the act was done without reasonable ground to believe the act of taking was lawful.” Murphy v. Commonwealth, 22 S.

W. 649, is a case decided by the Court of Appeals of Kentucky, which is so interesting on the inquiry that we give it in full: “Lewis, J.

The only ground suggested by counsel for reversal of judgment in this case is the third instruction, as follows: ‘Even if the jury believe from the evidence that the shooting and killing of William Gray was accidental, yet, if they believe that said accidental shooting and killing was the result alone of the reckless, careless use of a loaded pistol in the hands of the defendant, they should find the defendant guilty of voluntary manslaughter, and fix his punishment at confinement in the penitentiary of the state for a period of not less than two nor more than twenty-one years, in their discretion.’ We do not see any error in that instruction, for an offense which may be either murder or manslaughter, according to attending circumstances, is correctly described in that instruction.

The only reason that could exist for condemning the instruction is lack of evidence authorizing the court to give it, and, even in view of the evidence in the case it was proper for the court to give it. The deceased was a boy 11 years of age, accused being 15 or 16 years old. The deceased, accompanied by a woman, went to a place in the woods for the purpose of carrying dinner to two men, who, with the accused, were engaged in getting saw logs.

The deceased was asked by one of the men to preach, but, upon his refusal, accused drew a loaded pistol, and, pointing it at his toes, told him he would shoot him if he (deceased) did not preach, and continued pointing it at him until deceased ran under a log for protection, in the meantime crying from fright. Afterwards accused started away from the place, and, by pursuasion, deceased was induced to accompany him. When they had gotten about 150 yards, and out of sight, a pistol shot was heard by the others, who, when reaching the place, found the little boy with a wound in the breast, and dead.

Accused stated that the shot was purely accidental, and resulted from his falling and striking the pistol that was in the scabbard against a rock, and that he did not at the time have the pistol pointed at deceased, or even drawn; but to another person he admitted, on the day after the killing, that he had the pistol pointed at deceased, and the shot was caused by bis finger accidentally slipping upon the trigger.

There was evidence sufficient to authorize the jury to believe and find death occurred under circumstances of such reckless and gross carelessness as to make the homicide manslaughter, of which accused was found guilty.” When we turn to the United States cases we find: In considering a penal clause of a revenue act providing that “if any distiller shall knowingly and willfully omit, neglect,” etc., the Supreme Court of the United States held that the “words ‘knowingly and ‘willfully’ implied not only a knowledge of the thing, but a determination with an evil intent to do it or to omit doing it”; and the court quoted with approval Chief Justice Shaw, to the effect that “willfully,” in the ordinary sense in which it is used in the statutes, means not only voluntary, but with a bad purpose.

Felton v. United States, 96 U. S. 699, 702, 24 L. Ed. 875. The definition here given of the word “willfully” is approved in Potter v. United States, 155 U. S. 446, 15 Sup. Ct. 147, 39 L. Ed. 214; in Spurr v. United States, 174 U. S. 734, 19 Sup. Ct. 815, 43 L. Ed. 1150; both cases arising under the penal clauses of the national banking act. It has been followed in United States v. Smith (D. C.) 27 Fed. 859; North Carolina v. Vanderwood (C. C.) 35 Fed. 287. In a revenue statute prescribing penalties for “willfully removing official seals from property,” etc. (Act Cong.

June 27, 1864, c. 164, § 5, 13 Stat. 198), Judge Hall, of the Northern District of New York, held that the word “willfully,” as ordinarily used in the penal statutes, implied .wicked purpose or perverse disposition, or, indeed, any evil or improper motive, intent, or feeling, or, to characterize

an act done wantonly, or one which a man of reasonable knowledge must know to be contrary to his duty. United States v. Three Railroad Cars, 1 Abb. U. S. 196, 201, Fed. Cas. No. 16,513. In construing the same

section (Rev. St. U. S. 5341 [U. S. Comp. St. 1901, p. 3628]), Judge Maxey, in charging the jury, said: “Manslaughter is said by Mr. Blackstone (4 Bl. Comm. 191) to be the unlawful killing of another without malice, express or implied, which may be voluntary, upon a sudden heat, or involuntary, but in the commission of some unlawful act.

Voluntary manslaughter, as defined by the common-law writers, is an intentional killing in hot blood, without malice; and ‘involuntary manslaughter, according to the old writers, is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed.’ 1 Whart. Crim. Law (8th Ed.) § 305. But the distinction above adverted to between voluntary and involuntary manslaughter is now obsolete at the common law, and becomes here immaterial.

Any unlawful and willful killing of a human being without malice is manslaughter, and, thus defined, it includes a negligent killing, which is also willful. It is insisted by the defendant’s counsel that the killing was by misadventure — a mere accident — • with no formed intent on the part of the defendant to kill Horan. I have told you that to constitute manslaughter the killing must be willful — must be willfully done.

The word ‘willfully,’ says a text-writer, ‘sometimes means little more than plain “intentionally” or “designedly.” Yet it is more frequently understood to extend a little further, and approximate the idea of the milder kind of legal malice; that is, as signifying an evil intent, without justifiable excuse.’ 1 Bish. Crim. Law, § 428. Now in this case it is not insisted that there was an altercation between deceased and the defendant, and that the killing was committed in sudden heat.

Manslaughter, however, may exist where there is no evidence of sudden heat of passion; as, for example, where the killing results from the negligent use of dangerous agencies, as firearms. The rule is thus stated by Mr. Wharton: ‘Whoever possesses a dangerous agent must take such care of it as good business men, under such circumstances, are accustomed to apply; and if, from his neglecting to exercise such care, death ensue to another, he is liable for manslaughter.’ Whart. Crim. Law, § 343.

But, gentlemen, you must accept this rule with the qualification or explanation that the killing must also be willfully Committed, as the word ‘willfully’ is defined in a foregoing part of this charge.” United States v. Meagher (C. C.) 37 Fed. 880, 881. If the first charge given was correct, then the refusal to charge thereafter as follows: “ (

i) If you believe from the evidence that the defendant unlawfully and willfully, but without malice, shot and killed Henry Hyler, you will find defendant guilty of manslaughter. (2) ‘Willfully/ as used in the foregoing instructions, means intentionally and designedly” — was proper, because the first proposition was included in the charge given; and the second, while perhaps correct so far as it goes, does not fully state the law applicable to the case before the court. What has just been said as to the second proposition of the first request fully applies to the third request.

If the first charge was correct, the instructions given to the jury in response to the question: “The jury wishes to know of the court whether, if the defendant did not know Hyler was behind the fence, and fired promiscuously, he could be guilty of manslaughter” — must also be approved. It is to be noted that no exception was taken to the fact that the judge did not answer the question categorically or specifically.

The answer given was emphasizing and somewhat elaborating the definition of “willfully” as given in his first charge, and the exception taken was for the reasons given in exceptions to the original charge. This disposes adversely of all the assignments of error, and our attention is called to none not assigned, but patent on the face of the record. The judgment of the Circuit Court is affirmed.