State v. Ellington

• Decision Date: 16 December 1895
• Citation: 43 P. 60,4 Idaho 529
• Parties: STATE v. ELLINGTON
• Court: Idaho Supreme Court

43 P. 60

4 Idaho 529

STATE v. ELLINGTON

Supreme Court of Idaho

December 16, 1895

CRIMINAL PRACTICE-INDICTMENT-MURDER.-Where, as in Idaho, the statute defines what shall constitute murder, an indictment which sets forth the crime in the language of the statute is sufficient.

SAME-DEGREE OF MURDER NEED NOT BE STATED IN INDICTMENT.-The finding of the degree of murder being, by statute, required to be found by the trial jury, it is not essential that the definitions of the various degrees should be stated in the indictment. People v. O'Callaghan, 2 Idaho 156, 9 P. 414, overruled.

EVIDENCE-VOLUNTARY STATEMENTS BY DEFENDANT.-Voluntary statements made by a defendant at the time of and while under arrest, it not appearing that the same were made or induced by any promise or hope of benefit to accrue to him therefrom, are proper to be proved on his trial. Evidence in this case examined and held to sustain verdict.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment affirmed, and the cause remanded.

Frank Martin and J. R. Wester, for Appellant.

The indictment is defective in that it does not charge murder. In order to charge murder in the first degree, it must necessarily allege that the killing was done unlawfully willfully and with deliberation, premeditation and with malice aforethought. That in the absence of such allegation it is fatally defective and does not charge murder. (Idaho Rev. Stats., secs. 6560, 6562; Leonard v. Territory, 2 Wash. Ter. 381, 7 P. 872; State v. Brown, 7 Or 198; State v. Herrell, 97 Mo. 105, 10 Am. St. Rep 289, 10 S.W. 387; Territory v. Evans, 2 Idaho 425, 17 P. 139; People v. O'Callaghan, 2 Idaho 156, 9 P. 414.) It must be distinctly averred in the indictment that the deceased died of the wound alleged to have been inflicted by the defendant. (State v. Connelly, 39 Me. 78; 1 Wharton's Criminal Law, sec. 536; Shepherd v. State, 54 Ind. 25; State v. Blair, 69 Mo. 317; People v. Lloyd, 9 Cal. 55; People v. Aro, 6 Cal. 208, 65 Am. Dec. 503; Littell v. State, 133 Ind. 577, 33 N.E. 417; State v. Locke, 35 Ind. 419; Howard v. State, 67 Ind. 401.) The conclusion of an indictment is no part of the instrument. (Shaffer v. State, 22 Neb. 557, 3 Am. St. Rep. 274, 35 N.W. 384; State v. McCormick, 27 Iowa 402; Smith v. State, 4 Neb. 277; Hagan v. State, 10 Ohio St. 459.) Where evidence is neither a part of the res gestae or the dying declarations of deceased, it is reversible error to admit them. If any testimony was illegally admitted, a new trial should be had. (State v. Hunsaker, 16 Or. 497, 19 P. 605; Montag v. People, 141 Ill. 75, 30 N.E. 337; People v. McKeon, 64 Hun, 504, 19 N.Y.S. 486; Coleman v. People, 58 N.Y. 555; State v. Nolan, 48 Kan. 723, 29 P. 568, 30 P. 486.)

Attorney General George M. Parsons, for the State.

Murder is defined by the statute as follows: "Murder is the unlawful killing of a human being with malice aforethought." (Rev. Stats., sec. 6560.) The degrees of the crime are fixed by the statute. (Rev. Stats., sec. 6562; Madden v. State, 1 Kan. 340; Commonwealth v. Patterson, 2 Met. 374; People v. King, 27 Cal. 507, 87 Am. Dec. 95; In re Mansfield, 106 Cal. 381, 39 P. 778.) Where a statute creating the offense is silent concerning the intent, no criminal intent need be alleged in the information for violation of the statute. (Harding v. People, 10 Colo. 387, 15 P. 727; State v. Smith, 17 R. I. 371, 22 A. 282; People v. Butler, 1 Idaho 233, 234.) The sufficiency of a criminal pleading to be determined by statute. (Rev. Stats., sec. 7675.) "From the allegations of the indictment, the intent is manifest." (People v. Davis, 8 Utah, 418, 32 P. 670.) The law presumes that every man intends the natural and necessary consequences of his own acts. (State v. Reed, 3 Idaho 754, 35 P. 706; Commonwealth v. Hersey, 2 Allen, 173, 179, 180; People v. Davis 8 Utah, 418, 32 P. 672; Davis v. People of Utah, 14 S.Ct. 328.) Our Penal Code declares: "No indictment is insufficient, nor can the trial judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." (Rev. Stats., sec. 7687.) In determining the offense charged in the indictment, all parts of the instrument will be considered together, and if from the whole it appears that the crime is sufficiently alleged, it will be sustained. (Territory v. Evans, 2 Idaho 425, 17 P. 139; People v. Dolan, 9 Cal. 583; People v. Nichols, 34 Cal. 211; People v. Swenson, 49 Cal. 390; Wharton's Criminal Pleadings, sec. 760.) In giving judgment this court should disregard technical errors and defects. (Rev. Stats., sec. 8070; People v. Butler, 1 Idaho 233, 234; State v. Reed, 3 Idaho 754, 35 P. 706; State v. Jorgenson, 3 Idaho 620, 32 P. 1129; State v. Clark, ante, p. 7, 35 P. 710.) The confessions of defendant made to Patterson and Basil were properly admitted in evidence; although the defendant was under arrest, the confessions were voluntarily made, and made without promise or inducement from the officers. The fact that the defendant was under arrest cuts no figure in the matter. (McQueen v. State, 94 Ala. 50, 10 So. 433, 444; Hornsby v. State, 94 Ala. 55, 10 So. 522, 525; State v. Coella, 3 Wash. 99, 28 P. 28, 30; State v. Whitfield, 109 N.C. 876, 13 S.E. 726; People v. Redonda, 44 Cal. 538.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The defendant was convicted of murder in the first degree, under the following indictment: "James A. Ellington is accused by the grand jury of said county of Ada, state of Idaho upon their oaths, by this indictment, found this twenty-eighth day of December, A. D. 1894, of the crime of murder, committed as follows: The said James A. Ellington, on the twentieth day of December, A. D. 1894, at the said county of Ada, and state of Idaho did unlawfully, willfully, feloniously, and of his deliberately premeditated malice aforethought, make an assault on one Charles Briggs, and a certain pistol, commonly called a 'revolver,' which then and there was loaded with gunpowder and one leaden bullet, and by him, the said James A. Ellington, had and held in his hands, he, the said James A. Ellington, did then and there unlawfully, willfully, feloniously and of his deliberately premeditated malice aforethought, shoot off and discharge at and upon the said Charles Briggs, thereby, and by thus striking the said Charles Briggs with the said leaden bullet, inflicting on and in the body of said Charles Briggs one mortal wound, of which said mortal wound the said Charles Briggs thence continuously languished, until the twenty-fifth day of December, 1894, on which said twenty-fifth day of December, 1894, at said county, he, the said Charles Briggs, died. And so the said James A. Ellington did, in manner and form aforesaid, unlawfully, willfully, feloniously and of his deliberately premeditated malice aforethought, shoot, kill and murder the said Charles Briggs, contrary to the form, force and effect of the statutes in such cases made and provided, and against the peace and dignity of the state of Idaho."

It is claimed by counsel for appellant that this indictment is fatally defective, in that it does not allege specifically that "the killing was done unlawfully, willfully and with deliberation, premeditation and with malice aforethought." While, perhaps, it might be conceded that a hypercritical analysis of this indictment, under the strict rules of etymology, would develop some deviation from such rules, we are clearly of the opinion that under the provisions of section 7687 of the Revised Statutes of Idaho which is as follows: "No indictment is insufficient, nor can the trial judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits"--the objections urged by counsel for the defendant cannot obtain. Counsel for defendant have urged their objections with exceptional zeal and ability, but we are mindful that our legislature has repeatedly reminded us that in the administration of the criminal law justice is not to be defeated through technicalities. Section 8236 of the Revised Statutes is as follows: "Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right." And, again, sections 7685 and 7686 are as follows:

"Sec 7685. Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.

"Sec. 7686. The indictment is sufficient if it can be understood therefrom: 1. That it is entitled in a court having authority to receive it, though the name of the court be not stated; 2. That it was found by a grand jury of the county in which the court was held; 3. That the defendant is named, or, if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name is to the jury unknown; 4. That the offense was committed at some place within the jurisdiction of the court except where the act, though done without the local jurisdiction of the county, is triable therein; 5. That the offense was committed at some time prior to the time of finding the indictment; 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is...