People v. O'Callaghan

• Decision Date: 25 January 1886
• Citation: 9 P. 414,2 Idaho 156
• Court: Idaho Supreme Court
• Parties: PEOPLE v. O'CALLAGHAN

9 P. 414

2 Idaho 156

PEOPLE v. O'CALLAGHAN

Supreme Court of Idaho

January 25, 1886

HOMICIDE-STATUTORY DEFINITION OF MURDER.-The statutory definition of murder of the first degree is a distinct and substantive definition and excludes therefrom certain homicides which would be murder at common law.

INDICTMENT-LANGUAGE OF STATUTE.-An indictment for murder in the first degree must be substantially in the language of the statute defining that degree of the offense.

SAME-COMMON LAW.-An indictment for murder which would be sufficient at common law is not necessarily so for murder of the first degree under the statute.

SAME-CRIMINAL PLEADINGS-PRACTICE.-The indictment for murder need not name the degree, but must show by a statement of facts substantially in the language of the statute the highest grade of the offense for which the party charged is to be tried, and then a conviction may be had for any lower degree included therein.

INDICTMENT-SUFFICIENCY OF-QUESTIONING ON APPEAL.-The indictment must support the judgment, and this question may be raised for the first time in the supreme court.

SAME-VERDICT-MODIFIED VERDICT-PRESUMPTION ON APPEAL.-Where the indictment sufficiently charges murder in the second degree, and the verdict is "guilty of murder of the first degree as charged," and there is no claim that the verdict is not supported by the evidence, and no other error appearing, the supreme court may treat such verdict as a verdict for murder in the second degree and modify the judgment of the court below accordingly.

(Syllabus by the court.)

APPEAL from District Court, Bingham County. Judgment modified and affirmed.

Smith &amp Wright, for Appellant.

D. P B. Pride, Attorney General, and H. M. Bennett, for the People.

No briefs found on file.

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

The defendant was indicted, tried, and convicted of murder in the first degree, and sentenced to be executed. From this judgment he appeals, and assigns as error that the indictment is not sufficient to support the verdict and judgment. The indictment charges substantially that the defendant feloniously, willfully, and of his malice aforethought did make an assault on Thomas Breen; that the defendant feloniously, willfully, and of his malice aforethought shot and wounded said Breen, and from the effects of the wound he died.

This is the modern common-law form for charging murder, and the first question for consideration is whether, under our statutes, the omission to charge the offense substantially in the language of the statute defining murder in the first degree is fatal to the judgment. The first definition of murder by our statute is as follows: "Murder is the unlawful killing of a human being with malice aforethought, either express or implied." This is a general description, and embraces all murder known to our law, whether of the first or second degree. Following this provision is a definition of express and implied malice, and then a more particular definition of murder in the first degree, which reads: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree."

It will be observed that the indictment does not charge that the killing was done with deliberation and premeditation. We have been referred to many respectable authorities which hold that the common-law indictment for murder sufficiently charges murder in either degree, but the adjudications upon this question are by no means uniform. It has been considered in some cases that the-expression, "with malice aforethought," is synonymous with "deliberation and premeditation." In People v. Ah Choy, 1 Idaho 317, our court seems to have adopted this view; but it is difficult to understand from this case what the indictment really contained. However, it was assumed in this, and one other case we find, that such an indictment sufficiently charges murder in the first degree; and we doubt not that prosecuting officers in drawing indictments have generally followed the practice thus sanctioned. If these adjudications, unsatisfactory as they are, had been made in civil actions, fixing and establishing rules of property, and property rights had accrued under them, we would hesitate to open the question; but in the case we are considering, and in the class to which the rule would apply, we take it there are no claims to vested rights which anyone will care to assert. It is a well-established principle of criminal pleading that the substantive facts necessary to constitute the offense charged must appear in the indictment with sufficient certainty to enable the party to defend against the charge and the court to pronounce judgment. Indeed, it is fundamental that the party shall be informed by the indictment of the "nature and cause of the accusation." This indictment contains no averment that the killing was perpetrated by means of poison, or lying in wait, or by torture, or in an attempt to commit any of the felonies specified in the statute quoted. It is admitted that the claim to convict for murder in the first degree was based upon evidence tending to show that the killing was willful deliberate, and premeditated. It is therefore this...