Shaffer v. State

• Citation: 22 Neb. 557,35 N.W. 384
• Parties: SHAFFER v. STATE.
• Decision Date: 30 November 1887
• Court: Supreme Court of Nebraska

22 Neb. 557

35 N.W. 384

SHAFFER

v.STATE.

Supreme Court of Nebraska.

November 30, 1887.

Syllabus by the Court.

Intent or purpose to kill is essential to constitute the crime of murder in the first or second degree, as defined by sections 3 and 4 of the Criminal Code, and this intent must be specifically and directly averred as part of the description of the offense in every indictment for either of those crimes.

An averment that the accused “feloniously, purposely, and of deliberate and premeditated malice,” did make an assault on the deceased, and that he then and there “feloniously, purposely, and of his deliberate and premeditated malice did shoot” the deceased with a gun loaded, etc., inflicting a mortal wound of which the deceased then and there died, does not satisfy the requirements of the law; for though the accused may have purposely and of deliberate and premeditated malice assaulted the deceased, and shot him, it does not follow that the shooting was with the design and purpose to produce death.

Where the purpose to kill is not averred by way of description of the offense, the omission cannot be aided by the ordinary formal conclusion of the indictment which avers that “so” the jurors do find and say that the accused “did in manner and form aforsaid, feloniously, purposely, and of his deliberate and fraudulent malice, kill and murder” the deceased. Such allegation, being nothing more than a legal conclusion arising from the facts previously stated, cannot cure any defects in the premises on which it assumes to be predicated.

Instruction numbered 13, copied from instruction numbered 9 in Williams v. State, 6 Neb. 334, and printed therein at page 336, criticised, and the concluding words thereof held unnecessary.

Error to district court, Kearney county; GASLIN, Judge.

Greene & Hostetter and J. E. Shepman, for plaintiff.

The Attorney General and J. L. McPheeley, for defendant.

REESE, J.

Plaintiff in error was convicted of the crime of murder in the first degree, and sentenced to be hanged. He alleges error, and brings the cause into this court for review. The indictment is as follows: “ The State of Nebraska, Kearney County--ss.: Of the November term of the district court of the Eighth judicial district of the state of Nebraska, within and for Kearney county in said state, in the year of our Lord one thousand eight hundred and eighty-six, the grand jurors, chosen, selected, and sworn in and for the county of Kearney aforesaid, in the name and by the authority of the state of Nebraska, upon their oaths present: That John Shaffer, late of the county aforesaid, on the eighth day of November, in the year of our Lord one thousand eight hundred and eighty-six, in the county of Kearney and state of Nebraska, aforesaid, did feloniously, purposely, and of his deliberate and premeditated malice, make an assault on one William H. Smith, then and there being, and a certain gun which then and there was loaded with gunpowder and thirty leaden shot, and by him, the said John Shaffer, had and held in both his hands, he, the said John Shaffer, did then and there feloniously, purposely, and of his deliberate and premeditated malice shoot off and discharge at and upon the said William H. Smith, and thereby and by thus striking the said William H. Smith with the said thirty leaden shot, inflicting on and in the head of him, the said William H. Smith, one mortal wound, of which said mortal wound the said William H. Smith then and there instantly died, and so the grand jurors aforesaid, on their oaths aforesaid, do find and say that the said John Shaffer did, in manner and form aforesaid, feloniously, purposely, and of his deliberate and premeditated malice, kill and murder the said William H. Smith, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.” (Signed by the district attorney.)

The question here is, does this indictment charge the crime of murder in the first degree, under the statutes of this state? Section 3 of the Criminal Code is as follows: “If any person 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 done, kill another; or if any person by willful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction of an innocent person--every person so offending shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.” The provisions of this section, as applicable to the case at bar, are that, if any person shall purposely, and of deliberate and premeditated malice, kill another, every person so offending shall be deemed guilty of murder in the first degree, etc. The killing must be done purposely, and of deliberate and premeditated malice; that is, there must be an intent or purpose to kill at the time of the commission of the act, and the killing must be deliberately and premeditately done. This is the plain and obvious meaning of the statute. Applying this statute to the indictment, we find an entire want of any allegation of an intent or purpose to kill. It is alleged that the assault was purposely made and that the gun was purposely discharged, but with what intent or purpose these acts were done is nowhere alleged. The pleader has followed a precedent for an indictment for murder under the common law, and this would have been sufficient had not the legislature by the enactment of the section above quoted changed the essential ingredients or constituent elements of murder. At common law there were no degrees of murder, and there were but two degrees of felonious homicide. These were murder and manslaughter. By the statute we have two degrees of murder--the first and second--and manslaughter. At common...