Holt v. Territory Oklahoma

• Decision Date: 13 February 1896
• Citation: 43 P. 1083,4 Okla. 76,1896 OK 14
• Parties: WILLIAM A. HOLT v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1896 OK 14

43 P. 1083

4 Okla. 76

WILLIAM A. HOLT v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 13, 1896

Error from the District Court of Kingfisher County.

The defendant was indicted by the grand jury of Kingfisher county, charged with the murder of one William Fowler in that county on the 12th day of July, 1894, and on trial before the jury he was convicted and his punishment fixed by the jury at imprisonment at hard labor for life. Judgment was rendered accordingly upon the verdict, from which judgment the defendant appeals. Reversed.

Syllabus

¶0 MURDER--Indictment for, Insufficiency of. An indictment which charged the making of an assault upon the deceased with premeditated malice and intent to kill, and which charged the shooting, striking and penetrating and the mortally wounding of the deceased, all with the deliberate and premeditated malice of the defendant, is insufficient to sustain a conviction for murder. To be sufficient it must charge that the unlawful acts by which the homicide was perpetrated, and the killing itself, were all done with the premeditated design or intention to effect the death of the deceased.

A. J. Jones and D. K. Cunningham, for plaintiff in error.

C. A. Galbraith, Attorney General, and J. B. Moffett, for the territory.

BIERER, J.:

¶1 The defendant claims that he was erroneously convicted and sentenced for the commission of the crime of murder, and he alleges error in fifty-eight different assignments; the most important question presented, and the one which is always entitled to primary consideration, being as to the sufficiency of the indictment to sustain the conviction had and the judgment entered.

¶2 The indictment, which was returned to the district court of Kingfisher county on October 12, 1894, and on which the defendant was convicted and sentenced for murder, is as follows:

"In the District Court, Fifth Judicial District, sitting in and for Kingfisher County, Oklahoma Territory.

"Territory of Oklahoma v. William Holt.

"INDICTMENT FOR MURDER.

"Territory of Oklahoma, Kingfisher County, ss:

"In the district court, Fifth judicial district, sitting in and for Kingfisher county, Oklahoma Territory, in the October term, in the year of our Lord one thousand eight hundred and ninety-four.

"The grand jurors, being duly empanneled and sworn, in and for said county, in the name and by the authority of the Territory of Oklahoma, upon their oaths do present and find:

"That William Holt, on the 12th day of July, A. D. 1894, in Kingfisher county, Oklahoma Territory, then and there being, did then and there in and upon one William Fowler, wilfully, unlawfully, purposely, feloniously and of his deliberate and premeditated malice, make and assault, with intent him, the said William Fowler, wilfully, unlawfully, purposely, feloniously and of his deliberate and premeditated malice, to kill and murder, and that the said William Holt, a certain shotgun then and there charged with gunpowder and leaden bullets, which the said shotgun he, the said William Holt, in his hands then and there had and held, then and there, wilfully, unlawfully, purposely and of his deliberate and premeditated malice did discharge and shoot off, to, at, against and upon the left side of the said William Fowler, and that the said William Holt, with the leaden bullets aforesaid, out of the shotgun aforesaid, then and there by force of the gunpowder aforesaid, by the said William Holt, discharged and shot off, as aforesaid, then and there wilfully, unlawfully, purposely, feloniously and of his deliberate and premeditated malice did strike, penetrate and wound, with the intent aforesaid, thereby then and there, giving to the said William Fowler, in and upon the left side of the body of him, the said William Fowler, then and there with the said bullets aforesaid, so as aforesaid discharged and shot out of the gun aforesaid, by the force of the gunpowder aforesaid, by the said William Holt, in and upon the left side of him, the said William Fowler, one mortal wound, of which mortal wound he, the said William Fowler, then and there died, and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say that the said William Holt, him the said William Fowler, wilfully, unlawfully, purposely, feloniously and of his deliberate and premeditated malice, did kill and murder.

"Contrary to the statute in such case made and provided and against the peace and dignity of the Territory of Oklahoma."

¶3 It is claimed that this indictment is insufficient because it does not charge that the killing of the deceased by the defendant was done with a premeditated design to effect death.

¶4 The evidence shows that the case is one in which, if the defendant is guilty at all, he is guilty because he killed William Fowler with the unlawful design and purpose directed toward William Fowler alone, and not in the doing of any other unlawful act, excepting the killing of Fowler with the evil purpose directed towards Fowler.

¶5 If the defendant is guilty of murder under the facts of this case, it is because he committed it within the meaning of the definition of murder as contained in the first paragraph of § 2076 defining murder under our statutes, which is,

"Homicide is murder in the following cases:

"First. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being."

¶6 In the case of Oliver P. Jewell v. The Territory, (p. 53, this volume,) the opinion in which is delivered at the present session of the court, and which case is, and no doubt will remain, a precedent on this question, we have held that an indictment for murder in order to be sufficient in this class of cases, must charge that the unlawful killing must have been accompanied with a premeditated design on the part of the slayer to effect the death of the person killed, and that an indictment charging that the act was committed with malice aforethought is not sufficient.

¶7 "Malice aforethought" and "deliberate and premeditated malice," as the language is used in the Jewell case by the first expression, and by the second in the case at bar, are substantially the same thing. So that, unless this indictment has some language expressive of a premeditated design to kill the person alleged to have been murdered, which is more expressive of that design than the terms "malice aforethought" and "deliberate and premeditated malice," following the decision in the Jewell case this indictment must be held insufficient.

¶8 Has this indictment any such language?

¶9 With reference to the charge that the defendant committed an assault upon the deceased, it will be observed that there is language expressive of the intent or the design to kill. It charges that the assault was made by William Holt "of his deliberate and premeditated malice" and "with the intent him the said William Fowler to * * * kill and murder," and if this language was carried by any appropriately expressive, terms throughout the indictment in charging the other acts committed, by which the crime of murder was sought to be stated, we would have no hesitancy in holding the indictment sufficient, for language that expresses premeditated intent to kill, sufficiently charges a premeditated design to effect death, for to kill one and to effect his death is the same thing.

¶10 With reference to the other acts charged to have been committed by the defendant, however, the design to kill is not connected.

¶11 The different acts charged in the indictment as having been committed by the defendant upon William Fowler are:

1. The assault.

2. The shooting with a shotgun charged with gunpowder and leaden bullets.

3. The striking William Fowler by such leaden bullets so shot

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