Morgan v. Territory of Arizona

• Decision Date: 19 March 1901
• Docket Number: Criminal 150
• Citation: 7 Ariz. 224,64 P. 421
• Parties: WILEY M. MORGAN, Indicted as Wiley Morgan, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

64 P. 421

7 Ariz. 224

WILEY M. MORGAN, Indicted as Wiley Morgan, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 150

Supreme Court of Arizona

March 19, 1901

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis Judge. Reversed.

The facts are stated in the opinion.

Hereford & Hazzard, and A. C. Baker, for Appellant.

C. F Ainsworth, Attorney-General, and Edward W. Land, District Attorney, for Respondent.

OPINION

SLOAN, J.

The appellant, Wiley M. Morgan, was indicted and tried in the court below for the murder of one John Duncan. The indictment charged murder in the first degree, but he was convicted of murder in the second degree, and sentenced to twenty years' imprisonment in the penitentiary. Defendant moved the trial court for a new trial, which was refused, and from this ruling he appeals to this court.

The court, in its charge, gave the statutory definition of murder, and, as well, of the two degrees of murder. Following this definition, the court charged as follows: "If you believe from the evidence, beyond a reasonable doubt, that the said John Duncan was unlawfully and feloniously shot and killed by the defendant with malice aforethought, as charged in the indictment; that the shooting and killing was the willful, deliberate, and premeditated act of the defendant, and was done without excuse or justification, -- then it is your duty to find the defendant guilty of murder in the first degree. If you believe from the evidence, beyond a reasonable doubt, that the said John Duncan was unlawfully, feloniously, and unjustifiably shot and killed by the defendant, as charged in the indictment and that the killing was the result of malice suddenly produced at the time the fatal shot was fired, and was without premeditation or deliberation, then it is your duty to find the defendant guilty of murder in the second degree." Appellant assigns as error that part of the latter instruction which states the circumstances which would constitute the homicide charged murder of the second degree. Counsel for appellant argued that that part of the instruction which says that if the deceased "was unlawfully, feloniously, and unjustifiably shot and killed by defendant, as charged in the indictment, and that the killing was the result of malice suddenly produced at the time the fatal shot was fired, without premeditation or deliberation," he was guilty of murder in the second degree, contained fatal error, in that it omits the essential element in murder, to wit, malice aforethought. It is contended that an unlawful, felonious, unjustifiable killing as the result of malice suddenly produced at the time of the killing, without premeditation or deliberation, does not constitute murder, under the statute; that the term "malice aforethought" involves the idea of some sequence between the intent to kill and the act of killing; and that this idea of sequence is omitted from the instructions. If it be true that the felonious intent to kill must precede the act of killing in point of time, in order to constitute murder of the second degree, the language of the trial court is not open to criticism in this regard, inasmuch as it is distinctly stated that the killing must be the result of malice suddenly produced at the time. A thing cannot result from another except the latter be in a sense a sequence, just as the cause must, in a sense, precede the effect. The language used excludes the idea that the act of killing can precede the intent to kill, otherwise it could not be a result of such intent. Our statute upon the subject of homicide is taken from the statutes of California, and the construction given the definition of murder by the courts of that state is therefore authoritative. In the case of People v. Bealoba, 17 Cal. 389, it was held that: "Murder in the first degree consists of willful, premeditated, unlawful killing. The intent to kill must exist, and may be proved from circumstances, though it need not have existed for any length of time before the act. It is sufficient if it be formed upon the instant, if the killing be unjustified." If, as held by the California court, it be sufficient to constitute murder of the first degree that the intent to kill be formed upon the instant of killing, this...