Weldon, E. Durward

English

University of Kentucky

Kentucky Law JournalVolume 34 | Issue 4 Article 111946Criminal Law--Deadly Weapon DoctrineE. Durward WeldonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationWeldon, E. Durward (1946) "Criminal Law--Deadly Weapon Doctrine," Kentucky Law Journal: Vol. 34 : Iss. 4 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol34/iss4/11KENTUCKY LAW JOURNALCRIINAL LAW-DEADLY WEAPON DOCTRINEThe inference of intent to kill or to do serious bodily harmwhich is drawn from the use of a deadly weapon is dne of thetypes of inferred malice which developed in the early commonlaw. Such writers as Hale,1 Blackstone,' and East3 give the classi-cal examples of its application in the past.' Many of the* earlydecisions were cases of excessive punishment where the provoca-tion was not sufficient to justify the use of a deadly weapon. Forinstance, a master corrected his servant with an iron bar; in onecase, a mother, and in another, a schoolmaster, killed a child bystamping on his abdomen; and a park-keeper tied a boy who wasfound stealing wood, to a horse's tail and struck the horse so thatthe boy was dragged away by itIt should be pointed out that one does not have to intend tokill in order to be guilty of murder at common law; an intentto inflict grievous bodily harm is sufficient. Perkins suggests thatthis should be kept in mind in applying the deadly weapon rulebecause it permits convictions under an inference of intent toinflict serious bodily harm where an inference of intent to killmight not be possible.'Why is such an inference of intent drawn from the use of adeadly weapon in a manner likely to cause death or serious bodilyharm? The best rationalization would seem to be that every oneknows that some weapons, such as loaded guns, and certain otherinstruments, such as stones, when used in a dangerous manner,are likely to produce death. Therefore when one directs such aninstrument at another person, he may naturally expect that hisconduct will produce death or serious bodily harm. In such casesit would seem that it is reasonable to infer that the killing was infact intentional, and the actor should be guilty of murder in theabsence of justification or excuse.The fact that the doctrine is generally applied only in caseswhere there is an absence of direct proof of malice raises severaldifficult problems. The defendant may say, for example, that heused the weapon in self-defense, and his only chance is that the'I HALE, HISTORY OF THE PLEAS OF THE CROWN (1778) 454, 457.2 IV BL. COMM. (11th ed. 1790) 199.3 EAST, A TREATISE OF THE PLEAS OF THE CROWN (1806) 234, 235.'Grey's Case, J. Kelyng 64, 84 Eng. Rep. 1084 (1666).'IV BL. COMM. (11th ed. 1790) 199.STEPHEN, A DIGEST OF THE CRIMINAL LAW (1877) 161.'Perkins, A Re-Examination of Malice Aforethought (1934) 43YALE L. J. 537, 554.'For the rationalization offered by many courts see: People v.Crenshaw, 298 Ill. 412, 417, 131 N. E. 576, 578 (1921); Common-wealth v. Webster, 5 Cush. 295, 306 (Mass. 1850); Commonwealthv. York, 9 Metc. 93, 103 (Mass. 1845).STUDENT NOTESjury will believe his story An innocent man, placed in thisunfortunate situation by the inference of malice, might be con-victed and receive the death penalty for a crime which in fact hedid not commit. It is to be expected, of course, that many defend-ants will make false statements in an attempt to escape punish-ment. This group will probably constitute the great majority, butif there is a strong likelihood that a substantial number of innocentpersons will be affected adversely to the point of injustice by therule, it should be restricted in its application. Should it appearthat such is the case, the adoption of the negligent murder doctrinein cases involving a deadly weapon is a possibility. The use ofthe deadly weapon would then be one of the circumstances to beconsidered and would raise no inference of malice. This wouldprovide a greater safeguard for the rights of the defendant andmight still allow the prosecution a conviction for murder wherethe man is actually guilty, although under a different rule andwith a lesser degree of punishment under most modern statutes.Having dealt with the reasoning behind the rule, we mayinquire into the effect which the law gives to this inference. Thebest view seems to be that a rebuttable inference of the fact ofmalice is set up.1" It is considered that the rights of the defendantare not excessively endangered, for he may rebut the inferenceby any defenses or evidence which he is able to offer. And, onthe other hand, the state is aided greatly from the proceduralstandpoint in that, having presented evidence to prove the killingwith a deadly weapon, it may rest and allow the defendant topresent his case. The net result of the application of the doctrineis that the state may show a killing with a deadly weapon; andthat showing alone, without mitigating circumstances, will be suffi-cient to sustain an indictment and a conviction for murder.Now it may be asked, what is a deadly weapon? In Acres v.United States it was defined as "a thing with which death can beeasily and readily produced."'  And, as we have seen, the require-ment of deadliness is also met if great or serious bodily injury islikely to result. In applying these definitions, the following cate-gories provide an adequate coverage for all situations. A deadlyweapon may mean (1) a weapon or instrumentality deadly per se,or (2) one not inherently dangerous but which is used in a deadlymanner. Under the first category will be included such weapons'This very thing occurred and the jury rejected the defend-ant's plea of self-defense and convicted him of murder. Durr v.State, 175 Miss. 797, 168 So. 65 (1936).'The term inference should be used instead of presumption,since the latter denotes a rule of evidence and goes further in itsscope than the former. IX WIGMORE, EVIDENCE (3rd ed. 1940) sec.2491; Perkins, A Re-Examination of Malice Aforethought (1934) 43YALE L. J. 537, 550.1 164 U. S. 388, 391, 41 L. Ed. 481, 484 (1896).KENTUCKY LAW JOURNALas loaded guns and pistols' and long knives.3 Instruments whichhave been classified as deadly because of the manner of their useunder the circumstances include automobiles," bricks,' hands andfeet,' pen knives," canes,' pistols used as bludgeons," stones,'chisels,', pins (used on a baby),-' chairs,' policemen's maces," ironbars,' and axes.' The circumstances may include the strength ofthe actor and of the victim as well as the nature and size of theinstrument itself.=The determination of what is a deadly weapon may be madeby the court, the jury, or by both. A Kentucky case defines theprovince of court and jury by saying:"The established rule on the subject is that, where theweapon is of such character as to admit of but one conclusionin that respect, the question whether or not it is deadly is oneof law; but where the weapon employed is such that its deadlycharacter depends upon the manner and circumstances of itsuse, the question is one of fact for the jury."'Many courts have ruled on the issue in cases in which it is con-clusive that the weapon is deadly or in which it is practicable forthem to do so." It is significant to note that the question is gen-erally decided as a matter of law where the weapon used is deadlyper se, and that the jury decides whether the instrument was deadlyunder the circumstances. In addition to these distinctions, thereis still a third aspect to the determination of what is a deadly weapon.The issue may be a mixed one, partly of law and partly of fact.In such cases, the jury will render a verdict after an instruction hasbeen given by the court stating the elements of a deadly weapon'Landreth v. State, 201 Ind. 691, 171 N. E. 192 (1930); Ewingv. Commonwealth, 129 Ky. 237, 111 S. W. 352 (1908); McBride v.State, 121 Tex. Crim. Rep. 288, 51 S. W. 2d 385 (1932)."Jones v. State, 74 Tex.cCrim. Rep. 205, 167 S. W. 1110 (1914).'People v. Clink, 216 Ill. App. 357 (1920). Contra: People v.Cash, 326 Ill. 104, 157 N. E. 76 (1927).'State v. Lee, 6 W. W. Harr. 11, 171 Atl. 195 (Del. 1933); Statev. Sims, 80 Miss. 381, 31 So. 907 (1902)."State v. Smith, 196 Wash. 534, 83 P. 2d 749 (1938).'State v. Roan, 122 Iowa 136, 97 N. W. 997 (1904).n Collins v. State, 22 Okla. Crim. Rep. 203, 210 Pac. 285 (1922)."Prior v. State, 41 Ga. 155 (1870); Shadle v. State, 34 Tex. 572(1870-1871)."Acres v. United States, 164 U. S. 388, 41 L. Ed. 481 (1896)."Commonwealth v. Branham, 69 Ky. (8 Bush) 387 (1871)."State v. Norwood, 115 N. C. 789, 20 S. E. 712 (1894)."Kouns v. State, 3 Tex. Crim. App. 13 (1877).'Doering v. State, 49 Ind. 56, 1 Am. Crim. Rep. 60 (1874)."People v. Lee, 23 Cal. App. 2d 168, 72 P. 2d 572 (1937)."Dollarhide v. United States,..1 Morris 233, 39 Am. Dec. 460(Iowa 1843); State v. Walker, 193 N. C. 489, 137 S. E. 429 (1927).Cosby v. Commonwealth, 115 Ky. 221, 72 S. W. 1089 (1903).Owens v. Commonwealth, 187 Ky. 207, 210, 218 S. W. 719, 720(1920)."See State v. Davis, 14 Nev. 407, 413 (1879).STUDENT NOTESand leaving to the jury the task of finding whether the accused isguilty under the particular circumstances of the ease'In conclusion, it is submitted that the inference of malice fromthe use of a deadly weapon is desirable and that the application ofthe rule should be continued. Although it may work an injusticein a few cases, it is believed that these instances will be rare, andthat, all things considered, its merits outweigh these possibilities ofinjustice.E. DURWARD WELDON'An instruction which the Kentucky courts have used is foundin STANLEY, INSTRUCTIONS TO JURIES IN KENTUCKY (1940) sec. 810.

Criminal Law--Deadly Weapon Doctrine

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=4082&amp;context=klj

Criminal Law--Deadly Weapon Doctrine

Abstract

Similar works

Full text

Available Versions

University of Kentucky