State v. Carver

• Citation: 22 Or. 602,30 P. 315
• Parties: STATE v. CARVER.
• Decision Date: 21 June 1892
• Court: Supreme Court of Oregon

30 P. 315

22 Or. 602

STATE v. CARVER.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Union county; JAMES A. FEE, Judge.

Evan Carver was indicted for murder in the first degree, and convicted. He appeals. Reversed.

R Eakin, for appellant.

Geo. E Chamberlain, Atty. Gen., for the State.

BEAN J.

The defendant was indicted, tried, and convicted of the crime of murder in the first degree, for the killing of Francis la Bord on the 27th day of May, 1891, in Union county, by shooting him with a pistol. From this judgment he appeals assigning as error the giving and refusal of certain instructions by the trial court. After instructing the jury that if the killing was done purposely and maliciously, but without deliberation and premeditation defendant is guilty of murder in the second degree, the court proceeds: "An intent to murder is conclusively presumed from the deliberate use of deadly weapon, causing death within a year. Hence, if you find from the evidence beyond a reasonable doubt that the defendant purposely and maliciously killed deceased by the deliberate use of deadly weapon, causing death within a year, then your verdict should be guilty." The defendant was indicted, and on trial for murder in the first degree, and, when the court used the word "guilty" in the instruction just quoted, the jury has a right to understand, and no doubt did understand, that if the killing was done purposely and maliciously, by the deliberate use of a deadly weapon, the defendant was guilty, and should be convicted, of the crime charged in the indictment. In this view, the instruction is manifestly erroneous. It authorized and directed the conviction of the defendant of murder in the first degree, upon proof only of murder in the second degree. The instruction entirely omits all the necessary requisites and distinguishing features of murder in the first degree, and substitutes therefor the presumption arising from the deliberate use of a deadly weapon. It correctly defines murder in the second degree only, and yet the jury must have understood that, if the case as stated in the instructions was shown by the evidence, they must find the defendant guilty as charged. In order to constitute murder in the first degree, the killing must have been done of deliberate and premeditated malice. Under the express provisions of our statute, there must be some other evidence of malice than the mere proof of the killing, unless the killing was effected in the attempt to commit a felony; and the deliberation and premeditation must be evidenced by poison, lying in wait, or some other proof that the design was formed and matured in cool blood, and not hastily, upon the occasion. Hill's Code, § 1727. The distinguishing features of this crime are matters of proof, and not of legal presumption. From the simple act of killing by the deliberate use of a deadly weapon, where nothing else is shown, the law of this state raises a conclusive presumption of an intent to murder, (Hill's Code, § 775;) but this legal presumption goes no further than what is necessary to constitute murder in the second degree. To raise the crime to the higher grade of crime of murder in the first degree, there must be some proof that the act was committed of deliberate and premeditated malice. State v. Lane, 64 Mo. 319; State...