Leonard v. Territory

• Decision Date: 04 August 1885
• Citation: 7 P. 872,2 Wash.Terr. 381
• Parties: LEONARD v. TERRITORY. [1]
• Court: Washington Supreme Court

7 P. 872

2 Wash.Terr. 381

LEONARD v. TERRITORY. ^[1]

Supreme Court of Territory of Washington

August 4, 1885

Error to Second district.

W. Scott Beebe, for plaintiff in error.

N. S. Porter, for defendant in error.

GREENE, C.J.

The plaintiff in error prosecutes this suit to reverse a judgment of death against him, and to procure a new trial. He was indicted in November, 1882, as is supposed, for murder in the first degree, and was convicted and sentenced in May, 1884. Errors in great number and variety are assumed to have occurred in the lower court, some before, some during, and some subsequent to the trial, any of which, it is claimed would be sufficient to vitiate the judgment, and all of which, except what otherwise appear of record, are duly saved in a bill of exceptions. We will pass upon the most important of these supposed errors in their order.

A fatal defect, first of all, is alleged to exist in the indictment itself. Guilt of murder in the first or second degree cannot it is contended, be gathered from the facts set forth as constituting the crime. "Every person," says our statute, "who shall purposely, and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be administered kill another, every such person shall be deemed guilty of murder in the first degree, and, upon conviction thereof shall suffer death;" and "every person who shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree." Code, §§ 786, 790. Such is the statute of murder under which the plaintiff in error was put to his trial upon an indictment, the body whereof reads as follows:

"Andrew Leonard is accused by the grand jury of the territory of Washington, composed of good and lawful men from the body of the Second judicial district, and from the counties of Cowlitz and Wahkiakum, duly elected, impaneled, sworn, and charged to inquire of and true presentment make to the said district court, at the regular November term, A. D. 1882, of the said district court, begun and held at Kalama, in the county of Cowlitz, in the district aforesaid, on the fourth Monday, being the twenty-seventh day, of November, A. D. 1882, of all offenses committed in the said district against the laws of the territory of Washington, by this indictment of the crime of murder in the first degree, committed as follows, to-wit: The said Andrew Leonard, on the fifth day of November, A. D. 1882, and within one year next preceding the date hereof, in the county of Cowlitz aforesaid, in the said district, in said territory of Washington, in and upon one Ambrose Patton feloniously, purposely, and of deliberate and premeditated malice, did make an assault; and that the said Andrew Leonard, with a certain gun, then and there loaded and charged with gunpowder and leaden bullets, then and there feloniously, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against, and upon the said Ambrose Patton; and that the said Andrew Leonard, with the leaden bullets aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder aforesaid, by the said Andrew Leonard discharged and shot off as aforesaid, the said Ambrose Patton in and upon the left side of him, the said Ambrose Patton, then and there feloniously, purposely, and of deliberate and premeditated malice, did strike, penetrate, and wound, giving to the said Ambrose Patton then and there, with the leaden bullets aforesaid, so as aforesaid shot and discharged and sent forth out of the gun aforesaid, by the said Andrew Leonard, in and upon the left side and head of him, the said Ambrose Patton, eleven mortal wounds, of which said mortal wounds the said Ambrose Patton then and there instantly died.

"And so the jurors aforesaid do say that the said Andrew Leonard the said Ambrose Patton, in manner and form aforesaid, then and there feloniously, purposely, and of deliberate and premeditated malice, by means of said gun and the shooting aforesaid, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Washington.

"Dated at Kalama, in the district aforesaid, this twenty-ninth day of November, A. D. 1882."

Our statute requires that, to constitute such a murder in the first degree as would consist with the facts charged in this indictment, the killing must have been done purposely, and of deliberate and premeditated malice. Five or six states have statutes similar to, and three or four others statutes almost or quite identical with, our own. So far as we are advised, the supreme courts of all those states concur in holding that to bring a case within the statute the indictment must charge that the killing itself was purposed, deliberate, premeditated, and malicious. Crim. Code. Or. § 506; State v. Brown, 7 Or. 198; Fouts v. State, 8 Ohio St. 109; Kain v. State, Id. 307; Hagan v. State, 10 Ohio St. 459; Bechtelheimer v. State, 54 Ind. 135; Snyder v. State, 59 Ind. 105; Code Iowa, § 4192; Fouts v. State, 4 G. Greene, 500; State v. McCormick, 27 Iowa, 402; Johnson v. Com. 24 Pa. St. 386; Meyers v. Com. 83 Pa. St. 131; Bower v. State, 5 Mo. 379; State v. Jones, 20 Mo. 58; State v. Feaster, 25 Mo. 326; State v. Wieners, 66 Mo. 24; Mitchell v. State, 8 Yerg, 534; Belknap v. Boston & M. R. Co. 49 N.H. 369.

It is clear that the indictment ought to charge the crime conformably to the definition of the statute. Nowhere does the one before us so charge murder in either degree, unless its closing paragraph, beginning "and so," can be taken to eke out what is alleged in the preceding sentence. In the former part or body of the indictment, both purpose and malice are ascribed to the assault, and to the shooting and wounding, but neither of them to the killing, or giving of the mortal wounds. Since this is so, we conclude that if purpose or malice in the very killing itself is anywhere averred, it must be in the closing paragraph. Does that paragraph aver either? Evidently it does, if the positive allegation contained therein, "that the said Andrew Leonard the said Ambrose Patton, in manner and form aforesaid, then and there feloniously, purposely, and of deliberate and premeditated malice, by means of said gun and the shooting aforesaid, did kill and murder," introduced, as the allegation is, by the words "and so," can be held to be such an averment; and otherwise it manifestly does not. A meaning other than that which the grand jury may fairly be said to have intended it should bear cannot be given it. The incriminating facts upon which they intended the defendant should be tried they have undertaken to express in words. How they say what they do say is the best and only possible evidence of what they intended to say. By the words they have used, and the structure they have given to the sentences into which they have framed their words, we shall ascertain the meaning they have intended.

Under our laws an indictment must be direct and certain, both as regards the crime charged and as regards the particular circumstances thereof, when they are necessary to constitute a complete crime. The circumstances of purpose and malice, as ingredients of the killing, are necessary to constitute the complete crime of murder, in either degree, by our law. Therefore, if the words "and so," preceding the averment of purposeful and malicious killing, indicate an intent on the part of the grand jury to announce a mere inference that they draw from facts they have previously set forth, then the charge that the defendant "purposely, and of deliberate and premeditated malice," killed, positive though it be, should not have the force of a direct and certain averment. How can it be sensibly claimed that an inferential statement should have the force of an absolute? Everybody recognizes and allows for the difference. Give to the one statement the same effect as to the other, and you break down and do away with those necessary partitions, those ancient landmarks, between meaning and meaning which must reverently be preserved and heeded, if communication between mind and mind is to be either possible or safe. It is true that our statute prescribing criminal procedure quite abolishes the embarrassing and injurious technicalities of the common law; but it also declares, in the interest both of the public and of the party accused, that the act or omission charged as crime shall be "clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

From the statutory provisions we gather that our courts, and defendants in the courts, are to view indictments through the simple atmosphere of common sense and not through the line-multiplying spectroscope of the common law; but we do not understand that, in construing indictments, forms of expression are to be utterly disregarded, and that things are to be understood as intended to be expressed, for which there appears no adequate or sensible form of expression. That a defendant must be tried for something definitely charged, or he has no fair trial, is very clear. Our statute designs and insures a fair trial, and is in perfect harmony and furtherance of all constitutional provisions in that regard. From an application of these considerations to the form of expression adopted by the grand jury as the closing paragraph of their indictment in this case, it follows that if the language of the paragraph is such as would naturally be understood to state an inference,...