Blanton v. State

• Decision Date: 31 May 1890
• Citation: 1 Wash. 265,24 P. 439
• Parties: BLANTON v. STATE.
• Court: Washington Supreme Court

24 P. 439

1 Wash. 265

BLANTON v. STATE.

Supreme Court of Washington

May 31, 1890

Appeal from superior court, Whitman county; W. N. RUBY, Judge.

Moses Bull and C. M. Kincaid, for appellant.

L H. Plattor, for the State.

ANDERS C.J.

On the 16th day of December, 1889, the appellant, Benjamin Blanton killed one Thomas C. Click, in Whitman county, in this state, by shooting him with a pistol. Upon the plea of not guilty, and the defense of insanity or delirium tremens resulting from long-continued use of intoxicating liquors, he was tried, convicted of murder in the first degree, and sentenced to be hanged. The defendant brings the cause to this court for review, and claims a reversal of the judgment of the court below for errors alleged to have been committed on the trial.

Although the indictment was not attacked in the trial court either by motion to quash or by demurrer, or even by motion in arrest of judgment, it was insisted on the argument in this court, by appellant's counsel, that it does not state facts sufficient to constitute murder either in the first or second degree, under our statute, and is insufficient to sustain the judgment of the superior court; and while it is to be regretted that the question was not raised at an earlier stage of the proceedings, and presented in the brief of counsel, still we are of the opinion that it is a matter which the defendant should not be deemed to have waived by his failure to urge it in the court below. The indictment, omitting the venue, is as follows: "Benjamin Blanton is accused by the grand jury of the state of Washington, for the county of Whitman, by this indictment, of the crime of murder in the first degree, committed as follows: That he, the said Benjamin Blanton, on the 16th day of December, 1889, at the county of Whitman, in the state of Washington, in and upon the body of one Thomas C. Click, then and there being, feloniously, purposely, and of his deliberate and premedidated malice, did make an assault; and that he, the said Benjamin Blanton, with a certain revolving pistol, then and there charged with leaden bullets, which said revolving pistol he, the said Benjamin Blanton, then and there had and held, and there, feloniously, purposely, and of his deliberate and premeditated malice, did discharge and shoot off, to, at, against, and upon the said Thomas C. Click, and that the said Benjamin Blanton, with one of the leaden bullets aforesaid, out of the revolving pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Benjamin Blanton discharged and shot off as aforesaid, then and there, feloniously, purposely, and of his deliberate and premeditated malice, did strike, penetrate, and wound him, the said Thomas C. Click, giving to him, the said Thomas C. Click, one mortal wound, of which said mortal wound he, the said Thomas C. Click, then and there instantly did die; and so the grand jury aforesaid do say that the said Benjamin Blanton, him, the said Thomas C. Click, in the manner and by the means aforesaid, feloniously, purposely, and of his deliberate and premeditated malice, did kill and murder, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Washington. Dated at Colfax, in said county of Whitman, the 19th day of December, A. D. 1889."

At common law, murder was defined as the unlawful killing of a human being under the king's peace, with malice prepense or aforethought, either express, or implied by law. 1 Russ. Crimes, 482; 4 Bl. Comm. 198. And there was no classification of crime into degrees, but all malicious homicides were of the same grade, and subject to the same penalty. It being manifestly unjust to punish him who kills another with only that degree of malice which is implied by law with the same severity as him who deliberately and premeditatedly takes the life of a fellow being, the legislatures of several of our states have changed the common law relating to murder, not only by dividing it into distinct degrees, but by specifically defining its grades, and prescribing corresponding penalties. Our statute defines murder in the first degree as follows: "Every person who shall, purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate, any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death." Code, § 786. And "every person who shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree." Id. § 790. Murder, therefore, with us, is now a purely statutory, and not a common-law, crime, and must be so considered by the courts; and, in order to constitute murder in either degree, it is necessary that there must have been a specific intent or purpose to kill. Under our statute, this is evident; but the difficulty in given cases is to determine whether or not this intent has been sufficiently expressed in the indictment. And the question now before us is, has this been done in the indictment now under consideration? It is insisted that the indictment nowhere charges that the defendant purposely, and of his deliberate and premeditated malice, killed the deceased, and that without such a direct and positive allegation it is fatally defective. The objection is well taken, and must be sustained.

The indictment does allege that the defendant did puposely, and of his deliberate and premeditated malice, assault the deceased, and that he purposely, and of his deliberate and premeditated malice, fired the fatal shot; but it does not allege that it was thus fired with the intent to kill, or that the killing was thus done. All of the averments of this indictment may be true, and yet the defendant not guilty of murder. But it has been suggested that the concluding part of the indictment, beginning with the words "and so," does contain all the averments necessary to make it conform to the requirements of the statute. But is this a concise statement of an act descriptive of the crime, or is it a mere conclusion of law drawn from antecedent averments of facts? The adverb "so" is defined by Webster as meaning "in the same manner; as has been stated; in this or that condition or state; under these circumstances; in this way with reflex reference to something just asserted." This is the ordinary way the word is understood, and it must be taken to mean the same thing when used in an indictment. Under our statute an indictment must be direct and certain as to the party charged, the crime charged, and the circumstances of the crime, when necessary to constitute a complete crime; and the act or omission charged as the crime must be clearly and distinctly stated, in plain and concise language, so that a person of ordinary understanding may know what is intended; and conclusions of law need not be stated. At common law the indictment would be good, as it was not necessary to allege a purpose or design to kill in an indictment for murder; and the concluding part was deemed only a conclusion of law, without which an indictment, as such, would be sufficient. Rex v. Nicholas, 32 E. C. L. 747; Fouts v. State, 8 Ohio St. 98, and authorities cited.

If this were a new question, and presented for the first time; if pleaders and courts were not familiar with the form in which this indictment is drawn, and accustomed to look upon it as the established and long-sanctioned precedent of an indictment,-would we hesitate to say that it does not consist with the essential requirements of our statutes? We think not. And, as we have no common-law crime of murder in this state, we are constrained to look solely to our statute for the definition of the crime; and it will not do for the grand jury to charge an assault or a shooting in the language of the statute, and then conclude that "so" the deceased was killed. The following cases are in point: See Fouts v. State, 8 Ohio St. 98; Kain v. State Id. 307; State v. McCormick, 27 Iowa, 402; Shaffer v. State, 35 N.W. 384; Leonard v. Territory, 2 Wash. T. 381, 7...