Cannon v. State

• Decision Date: 25 May 1895
• Citation: 31 S.W. 150,60 Ark. 564
• Parties: CANNON v. STATE
• Court: Arkansas Supreme Court

31 S.W. 150

60 Ark. 564

CANNON v. STATE

Supreme Court of Arkansas

May 25, 1895

Appeal from Saint Francis Circuit Court GRANT GREEN, JR., Judge.

Judgment reversed and cause remanded.

Thos C. Trimble for appellant.

1. The indictment does not charge murder in the first degree. Sand. & H. Dig., sec. 1644.

2. The court erred in refusing a continuance.

3. It was error to refuse to admit the testimony offered by appellant.

E. B Kinsworthy, Attorney-General, for appellee.

1. There was no demurrer to the indictment, and no motion in arrest of judgment. The indictment charges murder in the first degree.

2. There were no objections to the instructions.

3. There was no error in refusing the continuance. The motion does not show that appellant had made any effort whatever to procure the absent witnesses. Even if they had been present their evidence would have been inadmissible. The evidence of threats were not admissible. 34 Ark. 469; 14 So. 30; 22 S.W. 142; 26 Ark. 199; 13 So. 199. The court did not abuse its discretion. 54. Ark. 243.

BUNN, C. J. RIDDICK, J., (dissenting).

OPINION

BUNN, C. J.

The appellant, James Cannon, was indicted, tried and convicted of murder in the first degree in the St. Francis circuit court, at its September term, 1894, and appealed to this court.

The crime was alleged to have been committed on the night of the 15th, he was arrested and indicted on the 20th, and trial began on the 27th, and was concluded on the 29th September, 1894. There was no demurrer to the indictment, nor motion in arrest of judgment after conviction, but counsel for defendant, in argument, contends that the indictment is not a good indictment for murder in the first degree, for which defendant was convicted, and we do not feel at liberty to ignore this plea, however irregularly it may be made. The defect in the indictment is not specifically pointed out by defendant's counsel, but, upon examination, we take it that it is that the statutory word "deliberately" is omitted; and this leads us into an inquiry necessarily somewhat extended.

Before coming to the direct inquiry as to whether or not the omission of this word, or its equivalent, is fatal to the indictment, it is necessary first to establish the proposition that any of the words employed in the statute, or all of them taken together, are essential to be used in such an indictment, and upon this question the authorities are divided. A little authentic history of the law's dealings with the crime of murder may not be out of place in this connection.

Mr. Bishop in his work styled, "New Criminal Law" (vol. 1, sec. 600, subdivision 2), says: "Homicides were all, at an early period, punishable with death, when committed under any of the circumstances which now make the killing either murder or manslaughter. If, in a particular instance, it was of 'malice aforethought,' which is now the distinguishing element of murder, it was worse in morals, not in law. Afterward the law adopted the rule of morals, by making the killing murder when done of 'malice aforethought;' while, if it was without such malice, it was called by the name of manslaughter; punishing only murder with death, manslaughter less severely. Still, if the malice aforethought with which a murder was committed was 'deliberately premeditated,' it was in morals more aggravated, not in law. Of such a circumstance the law took no cognizance. At last, however, it has in most of our States taken this aggravation also into account--punishing the murder capitally only when thus aggravated, and ordaining a milder punishment for simple murder, called murder in the second degree." Thus has the application of capital punishment been narrowed and restricted at each successive step, until now it is not to be applied unless in cases defined in the statute.

In perfect accord and keeping with these changes, which the law on the subject has undergone from the earliest to the present times, the statutes of this State, adopted at the, first session of her general assembly, after defining murder in general as it was defined at common law, after the first change noted above, then proceed to divide this crime into two degrees, in accordance with the second change of the law suggested; and in this division each of the two degrees is defined thus:

"Sec. 1644. All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny, shall be deemed murder in the first degree."

"Sec. 1645. All other murder shall be deemed murder in the second degree."

It will be observed that in the first clause of the section defining murder in the first degree, besides words describing specific acts, there are four qualifying words employed to define murder in the first degree, when committed otherwise than by the specific methods named, namely: "willful," "malicious," "deliberate," and "premeditated." These denote the intent with which the killing must be done in order to make it murder in the first degree, and moreover they denote not only the moral impulse, but peculiarly the mental process through which the crime is conceived, and the act resolved upon. Of these, it may be that "willful" is common in the definitions of many crimes, and yet it may have a peculiar meaning in its application to murder in the first degree, because of its peculiar emphasis and intensity as used in such connection. "Malicious" may in some sort be considered as synonymous with "malice aforethought," although not a perfect synonym. In its larger sense, it is common to many crimes. At all events, it is common to both degrees of murder, when considered as synonymous with "malice aforethought." But the words "deliberate" and "premeditated" are peculiarly and solely descriptive of murder in the first degree. All the authorities agree that, in order to sustain an indictment for murder in the first degree, the proof must show that the killing was done willfully, deliberately and premeditatedly, as well as in the manner descriptive of murder generally. A majority of the American States, according to the best text writers, hold, however, that while it is essential that the proof should show the killing to have been done willfully, deliberately and premeditatedly, yet neither these words nor their equivalents are essential to make a good indictment for this crime. Such is the rule in Massachusetts, New Hampshire, Maryland, Alabama, Pennsylvania, Virginia, Maine, Connecticut, New York, Michigan, Minnesota, Colorado, Nevada, Wisconsin, Montana, Texas, Tennessee, California and Washington--19.

The main argument of the courts in all of these States to sustain their position is that the division of murder into two degrees creates no new crime, but simply fixes a punishment for each of the two grades of the one crime, or, more correctly speaking, punishes the highest grade only capitally, leaving the lower grade to be punished by imprisonment only--a punishment for any murder whatever unknown to the common law. And so these courts say it is mere matter of determining the character of the punishment, which is as much the peculiar province of the jury as is fixing the amount of punishment, which is left to the jury in all other cases where the punishment is variable.

So far as our research extends, there is only one case in which this particular question has been presented for consideration in this court, and that is the case of McAdams v. State, 25 Ark. 405. This court., in that case, adopted the rule that the statutory words need not be charged in the indictment, saying: "It is insisted that the indictment should allege that the killing was willful, deliberate, malicious and premeditated, in addition to malice aforethought. We find that the indictment alleges that the prisoner 'feloniously, willfully and of his malice aforethought, did shoot,' etc. These allegations we think sufficient to charge murder in the first degree." Proceeding further, the court in that case gives, as a reason for its position, first, that the jury, by statute, is required in all cases of murder to declare in their verdict of what degree the defendant is guilty; and secondly, that the statute does not change the common law form of the indictment; citing Massachusetts and Pennsylvania eases in support of this last proposition.

Now, if the words in question were essential to the validity of the indictment, under an indictment wherein they were employed, the person indicted could be convicted of murder in the second degree as well as of the first degree. It is not quite clear that, even in such case. it would not be necessary for the jury to state the degree in their verdict. In fact, if they did not, the, court would be left in an awkward dilemma. There does not seem to be very great force in that reason. Again the court in that case cites and relies upon the several cases from Massachusetts, among them the case of Green v. Commonwealth, 12 Allen 155. In this latter case the question arose in a curious way. The indictment was a common law indictment simply, without the statutory words, as provided in that State, "deliberately premeditated malice aforethought," and yet by name for murder in the first degree. The defendant pleaded guilty to murder in the first degree, but, when brought before the proper tribunal for sentence, raised the question that the indictment did not charge murder in the first degree; and that, if it did, his punishment could not be fixed except by a jury on the facts in evidence. Without adverting further to this latter contention, it was contended by ...