Kaelin v. Com.

• Decision Date: 19 October 1886
• Parties: KAELIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W. 594

84 Ky. 354

KAELIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 19, 1886

Appeal from sentence of death by Jefferson circuit court.

Alpheus Baker, Kohn & Barker, Whitaker & Parsons, and W. G. Baird for appellant, Michael Kaelin. P. W. Hardin, for the State.

BENNETT J.

The appellant, Michael Kaelin, was indicted by the grand jury of Jefferson county for the murder of his wife, Caroline Kaelin. The trial jury in the Jefferson circuit court found him guilty of said charge, and fixed his punishment at death. His motion for a new trial having been overruled, and sentence of death having been pronounced upon him, he appeals to this court.

He complains, first, that the lower court erred in overruling his demurrer to the indictment because of its insufficiency in law.

So much of the indictment as is material to the investigation of the question raised by the demurrer is as follows: "The grand jurors of Jefferson county * * * accuse Michael Kaelin of the crime of murder, committed in manner and form, to-wit The said Michael Kaelin * * * unlawfully, willfully, cruelly and of his malice aforethought, did kill, slay, and murder his wife, Caroline Kaelin, by," etc.

The indictment fails to allege that the act of appellant in killing his wife was feloniously committed. The contention of appellant is that the failure to allege that the act of killing was feloniously committed renders the indictment fatally defective. If this position is well taken, then the lower court should have sustained the demurrer to the indictment, and, failing to do so, a new trial should have been granted, as the error runs through the entire proceedings thereafter had.

In order to keep an intelligent view of the question at issue before the mind, it must be remembered that the appellant is not accused in the indictment of any crime created by statute, nor of any crime defined by statute, but he is accused of the common-law crime of murder, which the statute of the state does not define, but simply fixes the punishment to be inflicted for committing the crime. So in determining the question of the sufficiency or insufficiency of the indictment before us, we must, of necessity, resort to the rules of the common law.

Mr Bishop, in the first volume of his work on Criminal Procedure, § 534, says: "The indictment should show plainly on its face whether the crime was treason, felony, or misdemeanor; so that, while the pleadings were in Latin, the indictment for treason must contain the word ' prodictorie,' and for felony the word ' felonice.' The omission indicated that the offense was no more than a misdemeanor; 'for,' says Starkie, 'it seems to be clear that no offense, as described in any indictment, can amount to more than a misdemeanor, if it be not said to have been committed either prodictorie or felonice. ' And these distinctions are continued, at least as to common-law offenses, down to the present day, and in this country. The indictment for treason alleges that the act was committed traitorously; for felony, that it was done feloniously; and when neither of these words is used the offense is only a misdemeanor." Also the same author says in volume 2, § 542: "Murder and manslaughter being equally felonies, the criminal act should in each be averred to have been done feloniously."

So, also, Wharton, in the first volume of his work on Criminal Law, § 399, says: "The word 'feloniously' is essential to all indictments for felony, whether at common law or statutory; and, in several cases, technical and appropriate words are frequently requisite in adding to the description of the offense. Thus, in an indictment for murder, it is essential to state, as a conclusion from the facts previously averred, that the said defendant, him, the said C. D., in manner and form aforesaid, feloniously did kill and murder,--a term of art which in no case can be dispensed with. On the same principle, it must also be alleged that the offense was committed of defendant's malice aforethought,--words which cannot be supplied by the aid of any other; and, if any of these terms be omitted, the indictment is defective."

So, also, Mr. Chitty, in his work on Criminal Law, § 242, says: "There are certain terms, which are usually inserted in the part of the indictment we are now examining, which mark out the color of the offense with precision, and which are absolutely necessary to determine the judgment. Thus, every indictment for treason must contain the word 'traitorously,' and 'feloniously' must be introduced in every indictment for felony; and these words are so essential that, if the word 'feloniously' be omitted in an indictment for stealing a horse, it would only be a trespass. * * * As a conclusion from the facts averred, it must be stated that so the defendant feloniously did kill," etc.

Also, Sir William Blackstone, in the fourth book of his Commentaries, 306, says: "The offense itself must be set forth with clearness and certainty; and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the offense that no other words, however synonymous they may seem, are capable of doing it. Thus, in treason, the facts must be said to be done treasonably, etc. In all indictments for felonies, the adverb 'feloniously' must be used; * * * for these alone can express the intent,--the very offense."

Further quotations from the writers on criminal law are unnecessary. It is sufficient to say that they hold that it is absolutely necessary, in all indictments for felonies at common law, to use the word "feloniously" to indicate the crime itself. The courts of England, says Mr. Bishop, have uniformly held that the word "feloniously" is indispensably necessary in all indictments for felony at common law. The courts of last resort of nearly every state in this Union hold the same doctrine.

The supreme court of Missouri, in the case of Jane v. State, reported in the third volume of the Supreme Court Reports, 61, holds that "there is no proposition more clear in law than that, in all indictments for felony, the indictment must charge the act to have been done feloniously, or with a felonious intent." Also, in the case of State v. Murdock, 9 Mo. 430, the court says: "Every offense which is made a felony by statute must be charged to have been done feloniously, whether it was a felony by common law or not. The word "feloniously" is indispensably necessary, in all indictments for felony, whether statutory or by common law." Also, to the same effect, are the cases of State v. Williams, 30 Mo. 364, and State v. Deffenbacher, 51 Mo. 26.

In the case of Bowler v. State, 41 Miss. 570, the court says: "It is settled that the word 'feloniously' is indispensable in every indictment for a felony, and hence the motion to quash this indictment ought to have been sustained." In the case of Mott v. State, 29 Ark. 148, the court says: "The word 'feloniously' must, of course, occur in the indictment, where the offense is a felony. * * * The indictment charges that appellant willfully and maliciously set fire to and burned the court-house, but the word 'feloniously' is omitted. The authorities, with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to charge that the act was feloniously done; * * * that the substance of a good common-law indictment should be preserved. If one matter of substance may be dispensed with, another may be, and where is the limit to the innovation? * * * This court has repeatedly held that, in indictments for felonies, the word 'feloniously' is substantive in charging the offense,--a word that has a fixed and well-defined legal meaning, understood by bench and bar."

In the case of Edwards v. State, 25 Ark. 446, the court says: "The indictment charges that the defendant 'purposely, and of deliberate and premeditated malice,' made the assault and gave the mortal wounds; and, in the conclusion, that he did 'purposely, and of deliberate and premeditated malice, kill and murder the deceased,' etc. ' Premeditated' and 'aforethought' are synonymous, and 'premeditated malice' and 'malice aforethought' are in sense and meaning the same, and either form of expression may, with equal propriety, be used; and the indictment does therefore, in fact, charge the offense to have been committed with malice aforethought. But the omission of the word 'feloniously' is not supplied by any other, and the authorities, with scarcely an exception, agree that it is absolutely necessary in charging a felony to allege that the act was feloniously done."

In the case of People v. Olivera, 7 Cal. 403, Chief Justice MURRAY said: "In my opinion, it would be impossible to allege a felony without the word 'felonious,' as it is necessary to show the intent with which the act was done. A crime may be the result of wickedness or malice, and at the same time may not be committed with a felonious intent."

Many other cases might be quoted from other states to the same effect as the foregoing ones, but it is unnecessary to do so as they only repeat the principle of the cases quoted. However, before concluding our reference to authorities upon the subject, we will make a quotation from the case of U. S. v. Staats, 8 How. 44, 45. The court says: "When words or terms of art are used in the description that have a technical meaning at common law, these should be followed, being the only terms to express, in apt and legal language, the nature and character of the crime. In all cases of felonies at common law, and some, also, by statute, the felonious intent is deemed an essential ingredient in constituting the offense, and hence the indictment will be...