In re Application of McLeod

• Decision Date: 13 January 1913
• Citation: 128 P. 1106,23 Idaho 257
• Parties: In the Matter of the Application of NORMAN D. McLEOD for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

128 P. 1106

23 Idaho 257

In the Matter of the Application of NORMAN D. McLEOD for a Writ of Habeas Corpus

Supreme Court of Idaho

January 13, 1913

MURDER-CRIMES INCLUDED IN MURDER-DEGREE OF CRIME-ASSAULT WITH DEADLY WEAPON-INJURY-VERDICT.

(Syllabus by the court.)

1. An information in which it is charged that "said Norman D McLeod, on or about the 19th day of October, 1912, at Rocky Bar, Idaho, and prior to the time of filing this information did then and there wilfully, unlawfully, feloniously and with malice aforethought, kill and murder one George Guay, a human being. All of which is contrary to the form and force of the statute in such cases made and provided, and against the peace and dignity of the state of Idaho," is sufficient and charges the crime of murder under the provisions of sec 6560, Rev. Codes.

2. Under the provisions of sec. 6560, Rev. Codes, "Murder is the unlawful killing of a human being, with malice aforethought"; and sec. 6562, Rev. Codes, defines the degrees of murder as follows: "All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, or mayhem, is murder of the first degree. All other kinds of murder are of the second degree." Sec. 6565 defines manslaughter: "Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: 1. Voluntary 2. Involuntary."

3. Sec. 6727, Rev. Codes, defines an assault as an unlawful attempt, coupled with a present ability to commit a violent injury upon the person of another; and sec. 6732, Rev. Codes, provides: "Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by means or force likely to produce great bodily injury, is punishable by imprisonment in the state prison not exceeding two years, or by fine not exceeding five thousand dollars, or by both."

4. Sec. 7925 provides: "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty."

5. Sec. 7926, Rev. Codes, provides: "The jury may find the defendant guilty of any offense, the commission of which is neces- sarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

6. Where an information is filed against a defendant, charging such defendant with the crime of murder, and such information charges the defendant with wilfully, unlawfully, feloniously and with malice aforethought killing and murdering one George Guay, a human being, and there is no allegation as to the manner or means of the killing, the defendant can only be convicted upon said charge of the crime of murder, which includes murder in the first degree, murder in the second degree and manslaughter.

7. The crime of assault with a deadly weapon or instrument is not necessarily included in the statutory definition of murder, and unless the information charging murder also alleges an assault, the defendant cannot be convicted of an assault with a deadly weapon, or instrument, or an assault, where the information does not contain an allegation that the murder was committed by an assault with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury.

8. Where an information charges murder in the language of the statute only, the person charged may be found guilty only of murder in one of the degrees specified in the statute-murder in the first degree, murder in the second degree or manslaughter, if the evidence warrants such a finding. If, however, the information had charged murder by an assault upon the person of another with a deadly weapon or instrument, the jury could have found the defendant guilty of murder in any of the degrees, and also of the crime of assault with a deadly weapon or instrument, if the evidence warranted such a finding.

9. Held, in this case, that the defendant having been charged with murder and found guilty of an assault with a deadly weapon, justifies this court in holding that the defect in the verdict of the jury and the judgment is not sufficient to release the petitioner, provided the county attorney files a complaint against the petitioner within five days after the judgment in this case is transmitted to the clerk of the district court of Elmore county; but if the information is not filed, then the facts justify and authorize the petitioner's release.

Application for writ of habeas corpus. Writ conditionally granted.

E. M. Wolfe and Wyman & Wyman, for Petitioner.

The information is in the most contracted form, barely sufficient with the aid of the statute to make a charge of murder. Without the aid of the statute, it would not be good for that purpose. The language thus used in connection with sec. 6732 does not constitute the crime of assault with a deadly weapon.

The information does not charge that the murder was committed with an instrument either deadly or otherwise. Therefore it cannot charge an assault with a deadly weapon.

Under these conditions, and under the scant pleadings the authorities hold that the lesser offense is not included in the greater, and the verdict is void, and defendant must be discharged. (People v. Murat, 45 Cal. 281; Mapula v. Territory, 9 Ariz. 199, 80 P. 389; Bryant v. State, 41 Ark. 359; Lindsey v. State, 53 Fla. 56, 43 So. 87; Goldin v. State, 104 Ga. 549, 30 S.E. 749; State v. Miller, 124 Iowa 429, 100 N.W. 334; State v. Desmond, 109 Iowa 72, 80 N.W. 214; Beckwith v. People, 26 Ill. 500; Terhune v. Commonwealth, 144 Ky. 370, 138 S.W. 274; State v. Way, 76 Kan. 928, 93 P. 159, 14 L. R. A., N. S., 603; Scott v. State, 60 Miss. 268; People v. Adams, 52 Mich. 24, 17 N.W. 226; Territory v. Dooley, 4 Mont. 295, 1 P. 747; Alyea v. State, 62 Neb. 143, 86 N.W. 1066; State v. Thomas, 65 N.J.L. 598, 48 A. 1007; Gorman v. State, 52 Tex. Cr. 24, 105 S.W. 200; Cates v. Commonwealth, 111 Va. 837, 69 S.E. 520; State v. Porter, 48 La. Ann. 1539, 21 So. 125; State v. Shear, 51 Wis. 460, 8 N.W. 287; State v. Romano, 41 Wash. 241, 83 P. 1; State v. Ackles, 8 Wash. 462, 36 P. 597; McLain, Crim. Law, sec. 389; Clark, Crim. Procedure, sec. 356; Wharton, Crim. Pleadings & Pr., sec. 250; Bishop, New Crim. Law, secs. 794--798.)

D. C. McDougall, Attorney General, O. M. Van Duyn, J. H. Peterson, Assistants, W. L. Harvey, and E. H. Hulser, for the State.

If in any conceivable case, under any possible state of facts, the verdict can be sustained upon a charge of murder in the form mentioned in the information, petitioner should be remanded to the custody of the sheriff and turned over to the proper officers of the state penitentiary. (Ex parte Curnow, 21 Nev. 33, 24 P. 430; In re Marshall, 6 Idaho 516, 56 P. 470; Ex parte Knudtson, 10 Idaho 676, 79 P. 641; Rev. Codes, sec. 8354.)

The charge "did wilfully, unlawfully, feloniously and with malice aforethought kill and murder," etc., includes the taking of life by any conceivable means. (State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Sly, 11 Idaho 110, 80 P. 1125; People v. Nichol, 34 Cal. 211; Taylor v. People, 21 Colo. 426, 42 P. 652; People v. Steventon, 9 Cal. 273.)

When a person is charged with a given offense, he is bound by law to take notice of whatever lesser offense he may be convicted of thereunder, as the law governing the subject matter and practice then stands. (Rev. Codes, sec. 7926; State v. Burk, 89 Mo. 635, 2 S.W. 10.)

A fair interpretation of the words "necessarily included in the charge in the information," as used in sec. 7926 of the Rev. Codes, is, that if the evidence on the trial of the facts and circumstances of the offense charged necessarily prove the commission of the minor offense and each and every element thereof, such minor offense is necessarily included in such charge. (Ex parte Curnow, 21 Nev. 33, 24 P. 430; State v. Water, 39 Me. 65; Hopper v. State, 54 Ga. 389; State v. Lessing, 16 Minn. 75; James v. State, 36 Tex. 645; Bolding v. State, 23 Tex. App. 172, 4 S.W. 579; Maddox v. State, 41 Tex. 205; State v. Scott, 24 Vt. 127.)

The test of whether an offense is necessarily included in a major offense is whether the lesser offense could be pleaded in a separate count in the same information under sec. 7681, Rev. Codes, and if it can, then it is included in a charge of the major offense. (Rev. Codes, sec. 7681; People v. Prague, 72 Mich. 178, 40 N.W. 243.)

The rule of liberal construction in criminal pleadings prevails in this state; the substantial rights of the defendant were not prejudiced. (State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Caldwell, 21 Idaho 663, 123 P. 299; State v. Shuff, 9 Idaho 115, 72 P. 664; State v. Ireland, 9 Idaho 686, 75 P. 257; State v. Squires, 15 Idaho 545, 98 P. 413; State v. Sly, 11 Idaho 110, 80 P. 1125.)

For complete brief, see State v. Young, 22 Wash. 273, 60 P. 650, 13 Am. Cr. Rep. 93, and notes; also Duffy v. State, 154 Ind. 250, 56 N.E. 209, 14 Am. Cr. Rep. 361, and notes.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

--Norman D. McLeod filed an original petition in this court for a writ of habeas corpus. The petition alleges his imprisonment and confinement and restraint, and that such imprisonment, detention and confinement are illegal for the following reasons: That the county attorney of Elmore county on November 11, 1912, filed an information against the petitioner charging him with murder in the words and in the manner and form as follows: "That said Norman D. McLeod on or about the 19th day of October, 1912, at Rocky Bar, Idaho, and prior to the time of filing this information, did...