Jewell v. Territory Oklahoma

• Decision Date: 13 February 1896
• Citation: 1896 OK 16,43 P. 1075,4 Okla. 53
• Parties: OLIVER P. JEWELL v. THE TERRITORY OF OKLAHOMA.
• Court: Oklahoma Supreme Court

1896 OK 16

43 P. 1075

4 Okla. 53

OLIVER P. JEWELL v. THE TERRITORY OF OKLAHOMA.

Supreme Court of Oklahoma

Decided: February 13, 1896

Error from the District Court of Woodward County.

Syllabus

¶0 1. INDICTMENT FOR MURDER--Insufficient, When. An indictment which fails to charge that the homicidal act was perpetrated with a premeditated design to effect the death of the person killed, or of some other person, does not charge the crime of murder as defined in the first subdivision of § 2078, Statutes of Oklahoma, 1893.

2. SAME--Common Law Charge--Not Sufficient. The ordinary common law charge of murder in an indictment is not sufficient to support a verdict and judgment for murder under the first subdivision of § 2078, defining murder.

3. SAME. The charge that the shot which caused the death of the deceased was fired "feloniously, wilfully, and with premeditated malice aforethought," is not equivalent to the allegation that the fatal shot was fired "with the premeditated design to effect the death of the person killed."

4. SAME--Must Fully Charge the Crime. An indictment must fully charge the crime and set out all that the law requires to be proved. And want of averment cannot be supplied by an independent finding of fact not alleged in the indictment.

5. MURDER--Material Elements to Constitute. The material element necessary to constitute murder, under the first subdivision, is the "premeditated design to effect death," and must be alleged and proved as an independent fact, otherwise the killing is only manslaughter, unless it comes within one of the other definitions of murder as contained in the second and third subdivision.

6. HOMICIDE--Law Defined--Proof. Homicide is murder under the second subdivision "when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual." And the homicidal act must be one imminently dangerous to more than the the person killed. The class of persons intended to be embraced in this subdivision are such as where the acts by which the homicide is committed are directed against no particular person, but against a number of persons generally, or where the act is imminently dangerous to a number of persons but directed against none, and in either case, without any premeditated design to effect the death of any particular person. Proof of the felonious killing of a particular person by an assault directed specifically at the person killed, will not support a judgment for murder under said second subdivision.

7. SAME. Homicide is murder under the third subdivision "when perpetrated without any design to effect death, by a person engaged in the commission of any felony." And this means some felony as defined by statute other than that of the killing itself.

8. SAME. All other classes of homicide are manslaughter, unless justifiable or excusable.

9. CONVICTION UNDER SUFFICIENT INDICTMENT. The indictment charges that the prisoner unlawfully, feloniously, wilfully, and with premeditated malice aforethought, fired the fatal shot which resulted in the death of the deceased. The verdict was guilty of murder, and sentence of death. Held, the indictment is not sufficient to charge murder under subdivision one, defining murder; for the reason that it is not alleged that the fatal shot was fired with the premeditated design to effect the death of the deceased, and that the verdict and judgment can not be sustained under the second subdivision: for the reason that it does not appear that the homicidal act was dangerous to any person other than the deceased, or that it was perpetrated with a general deadly intent, regardless of human life.

10. COMMON LAW RULE CHANGED BY STATUTE. While a count in an indictment may contain a good common law charge of murder, it is not sufficient under the first subdivision of murder defined in Oklahoma Statutes; yet, as every common law charge of murder embraces some one of the grades of manslaughter, such indictment is good on demurrer.

R. J Ray for plaintiff in error.

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

BURFORD, J.:

¶1 The appellant was tried in the district court of Woodward county for the murder of one James McGuinn, in the month of October, 1894. The jury returned a verdict of guilty of murder and assessed the punishment at death. Motions for new trial and in arrest of judgment were made and overruled, and the court sentenced the appellant to be hanged. Appeal was prayed and execution of sentence stayed pending appeal.

¶2 The indictment is in three counts, and in order to a better understanding of the questions herein involved, we set out the same in full, as follows:

"United States of America, County of Woodward, Territory of Oklahoma, ss:

"In the District Court of the Fifth Judicial District, in and for the County of Woodward and Territory of Oklahoma, at the December term thereof, begun and held on the fourth day of December, in the year of our Lord one thousand eight hundred and ninety-four, in the city of Woodward and Territory of Oklahoma.

"The Territory of Oklahoma, Plaintiff, v. Oliver P. Jewell, Defendant.

"INDICTMENT FOR MURDER.

"First count. The grand jurors duly summoned from the body of Woodward county and territory of Oklahoma, chosen, examined, selected, empanneled, sworn and charged in and for the county and Territory aforesaid, to inquire into and true presentment make of crimes and offenses committed in the county and territory aforesaid, on their oaths do find and present:

"That one, Oliver P. Jewell, late of the county and territory aforesaid, and on the twenty-ninth day of October, A.D. 1894, then and there being, with force and arms in the county and territory aforesaid, in and upon the body of one, James McGuinn, in the peace of the territory then and there being, feloniously, wilfully, premeditatedly and of his malice aforethought, did make an assault; and that the said Oliver P. Jewell a certain pistol then and there charged with gunpowder and leaden bullets, which said pistol he, the said Oliver P. Jewell, in his right hand then and there held, and then and there feloniously, wilfully, premeditatedly and of his malice aforethought did discharge and shoot off, to, against and upon the said James McGuinn, and that the, said Oliver P Jewell, with one of the leaden bullets aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Oliver P. Jewell discharged and shot off as aforesaid, then and there feloniously, wilfully, premeditatedly and of his malice aforethought, did strike, penetrate and wound him, the said James McGuinn, in and upon the right side of the face of him, the said James McGuinn, giving to him, the said James McGuinn, then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said Oliver P. Jewell, in and upon the right side of the face of him, the said James McGuinn, one mortal wound of the depth of six inches, and of the breadth of half an inch, of which said mortal wound, he, the said James McGuinn, then and there, instantly died.

"And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Oliver P. Jewell, him the said James McGuinn, in the manner and by the means aforesaid, feloniously, wilfully, premeditatedly and of his malice aforethought did kill and murder; contrary to the statute in such case made and provided, and against the peace and dignity of the people of the Territory of Oklahoma.

"Second count. And the grand jurors, selected, examined, empanneled and sworn as aforesaid, on their oaths as aforesaid, do further find and present: That one Oliver P. Jewell, late of the county of Woodward, and the Territory of Oklahoma, on the twenty-ninth day of October, A. D. 1894, then and there being, with force and arms at and in the county aforesaid, in and upon the body of one James McGuinn, in the peace of said Territory, then and there being, feloniously, wilfully, with premeditation, and malice aforethought did make an assault, and that the said Oliver P. Jewell, a certain pistol then and there charged with gunpowder and two leaden bullets, which said pistol, he, the said Oliver P. Jewell, in his right hand then and there, had and held then and there feloniously, wilfully, with premeditation, and of his malice aforethought, did discharge and shoot off' to, against and upon the said James McGuinn, and that the said Oliver P. Jewell, with one of the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by the force of the gunpowder aforesaid, by the said Oliver P. Jewell discharged and shot off as aforesaid, then and there feloniously, wilfully, with premeditation, and of his malice aforethought, did strike, penetrate and wound him, the said James McGuinn, in and upon the back of him, the said James McGuinn, giving to him, the said James McGuinn, then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said Oliver P. Jewell, in and upon the back of him, the said James McGuinn, one mortal wound, of the depth of six inches, and of the breadth of half an inch, of which said mortal wound, he, the said James McGuinn, then and there, instantly died.

"And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Oliver P. Jewell, him, the said James McGuinn, in the manner, and by the means aforesaid, feloniously, wilfully with premeditation, and of his malice aforethought, 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, and the people thereof.

"Third count. And the grand jurors, selected, examined, empanneled and sworn as aforesaid, on their oaths as aforesaid, do further find and present, that one, Oliver P.

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