State v. Bertoch

• Citation: 112 Iowa 195,83 N.W. 967
• Parties: STATE v. BERTOCH.
• Decision Date: 16 October 1900
• Court: United States State Supreme Court of Iowa

112 Iowa 195

83 N.W. 967

STATE

v.BERTOCH.

Supreme Court of Iowa.

Oct. 16, 1900.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

The indictment in this case charges, in substance, that on the 13th day of September, 1897, the defendant Theodore Bertoch, and one Ernestine Bertoch, who is jointly indicted with the defendant now on trial, willfully, unlawfully, deliberately, feloniously, premeditately, and of malice aforethought, and with the specific intent to take the life of a certain one Charles Selhusen, did mix and mingle a certain deadly poison, called “arsenic,” in certain berries, which had been and were prepared for the use of, and to be eaten and drunk by, him, the said Charles Selhusen; that the said Theodore Bertoch and Ernestine Bertoch knew that said arsenic was a deadly poison, and that the said berries with which said deadly poison was mixed and mingled were then and there provided for the use of, and to be eaten and drunk by, him, the said Charles Selhusen, with the intent on the part of the said defendants to take the life of the said Charles Selhusen, and from the eating and drinking of which the said Charles Selhusen died on the 17th day of September, 1897. The second count of this indictment is, in substance, the same as the first, with the exception that it says that the death of Charles Selhusen was caused by poison prepared and given to him by the defendants, and that said poison was arsenic and certain deadly poison to the grand jury unknown, and that said poison was given to him with the intent on the part of the said defendants to take the life of the said Selhusen, and that from the effects of the poison so administered the said Charles Selhusen died on the 17th day of September, 1897. The defendant Theodore Bertoch pleaded not guilty, was separately tried, and a verdict as follows returned against him: “We, the jury, find the defendant Theodore Bertoch guilty of murder in the second degree.” Judgment of imprisonment in the penitentiary “for the term of his natural life” was rendered on the verdict. Defendant appeals. Reversed.F. W. Ellis and L. A. Ellis, for appellant.

Milton Remley, Atty. Gen., Chas. A. Van Vleck, Asst. Atty. Gen., J. S. Darling, and C. H. George, for the State.

GIVEN, J.

1. Our opinion announced on the former submission of this case (79 N. W. 378) contained the following:

“The court gave the following, among other, instructions: ‘(1) The indictment in this case charges that the life of one Charles Selhusen was taken by having poison administered to him by the defendant, and that said poison was so given to the said Selhusen with the intent to take his life. Under the charge in this indictment, the defendant may be convicted, the evidence warranting, of either one of the following grades of homicide: Murder in the first degree; murder in the second degree.’ ‘(8) If you have any reasonable doubt of the degree of the murder of which the defendant is guilty, if guilty at all, you should only convict of such offense as you have no reasonable doubt of his guilt.’ The jury was further instructed as to the elements of murder in the first and in the second degrees, and was told that the distinctive difference is that in the second degree it need not be shown that the murder was with deliberate, premeditated purpose to kill, while in the first degree deliberate, premeditated intent to take life must be shown. The jury was also instructed: ‘If you find the defendant not guilty of murder in the first degree, you will proceed to determine whether he is guilty of murder in the second degree.’ Of these instructions the defendant complains, and insists that under the indictment he cannot be convicted of murder in the second degree, that there is no evidence to sustain the finding of guilt in the second degree, and that under the evidence he is either guilty in the first degree or not guilty. It is claimed on behalf of the state that under the statute and this indictment a conviction can be had in the second degree, that under the statute the jury was required to determine the degree, and that the instructions complained of were not prejudicial to the defendant.

The first question to be considered is whether, under a charge of murder,--that is, of killing a human being with malice aforethought,--perpetrated by means of poison, the accused may be convicted of murder in the second degree; or, in other words, whether there are degrees in murder perpetrated by means of poison. Our statute provides as follows:

‘Sec. 4727. Murder. Whoever kills any human being with malice aforethought, either express or implied, is guilty of murder.

Sec. 4728. First Degree. All murder which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary, is murder in the first degree, and shall be punished with death, or imprisonment for life at hard labor in the penitentiary, as determined by the jury, or by the court if the defendant pleads guilty.

Sec. 4729. Second Degree. Whoever commits murder otherwise than as set forth in the preceding section is guilty of murder of the second degree, and shall be punished by imprisonment in the penitentiary for life, or for a term of not less than ten years.'

The only authority cited that sustains the claim that in this case a conviction could be had in the second degree is State v. Dowd, 19 Conn. 388, wherein it is held, under statutes similar to ours, that, on an indictment for murder perpetrated by means of poison, the jury might find the accused guilty of murder in the second degree. In that case the court said: ‘In most of the cases mentioned in the statute as constituting the crime of murder in the first degree, the lesser crime is manifestly included. Thus, if the charge were that the murder was committed by the accused while lying in wait, the jury might find that it was not so committed, and convict him only of the lesser offense. So, if it were averred that the act was done by him while attempting to commit the crime of arson or rape, the jury might find that part of the charge untrue, and still convict the prisoner of murder in the second degree. Now, if the same rule applies to a case where the charge is for murder by poisoning, then the conviction in this case was legal. The language of the statute strongly favors such a construction. It provides that murder perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, shall be murder in the first degree; thereby implying that in all cases the crime must be the result of a willful, deliberate, and premeditated act. Hence, if any case can be supposed where murder may be committed by means of poison, and not be the result of such an act, then a conviction of murder in the second degree may be legal. And we do not feel ourselves authorized to say that the case under consideration might not have been one of that description, and, consequently, that the verdict is not right. Indeed, we are rather inclined to consider such the fair construction of the statute, especially as it is a highly penal one, and such construction operates against the greater severity.’ The statute specifically declares that all murder--that is, the killing of a human being with malice aforethought--perpetrated by means of poison is murder in the first degree, thus fixing the one and only degree of murder perpetrated by means of poison. We cannot conceive of a case where murder thus committed can be other than of the first degree. Such a killing is not only with malice aforethought, but is by statute declared to be willful, deliberate, and premeditated, because, in the very nature of the act, it must be so. It is impossible that one can with malice aforethought take the life of another by means of poison without doing so willfully, deliberately, and premeditately. It is not suggested in State v. Dowd how such a case can be murder in the second degree. When the charge is of murder by lying in wait, or other willful, deliberate, and premeditated killing, or in the commission of any of the other crimes named, we have quite a different case, as in those cases there may be murder without the aggravating circumstances. One convicted of murder by lying in wait is guilty in the first degree, but, if he committed the murder without lying in wait, he is guilty in a less degree. His guilt of murder does not depend upon his lying in wait, but simply the degree of his guilt, and so as to the other offenses named in section 4728. In those cases there may be guilt of murder without the aggravating circumstances that fix the degree, but in murder perpetrated by means of poison there is but one degree, and the crime either exists in that degree or not at all. There being but one degree of the crime charged, the statutes and decisions as to cases consisting of different degrees do not apply. In such case there is no issue as to degree, and no degree to be determined by the jury. Robbins v. State, 8 Ohio St. 132, is not in point. In that case the conviction was of the first degree, and the principal question discussed is whether, in cases of murder by means of poison, there must have been an intention to take life,--a question not involved in this case. In State v. Wells, 61 Iowa, 630, 17 N. W. 90, the conviction was in the first degree, and the question under consideration was not passed upon, nor was State v. Dowd approved. The question there considered was whether an intent to kill must be proven. It follows from what we have said that there can be no state of the evidence that will warrant the defendant's conviction in the second degree. He is either guilty in the first degree or he is not guilty of murder. In State v. Cater, 100 Iowa, 502, 69 N. W. 880, we held that the statute...