State v. Hliboka

• Decision Date: 24 December 1904
• Citation: 31 Mont. 455
• Parties: STATE v. HLIBOKA.
• Court: Montana Supreme Court

31 Mont. 455

STATE

v.HLIBOKA.

Supreme Court of Montana.

Dec. 24, 1904.

Commissioners' Opinion. Appeal from District Court, Cascade County; J. B. Leslie, Judge.

George Hliboka was convicted of murder in the first degree, and appeals. Affirmed.

A. P. McAnelly, Greene & Cockrill, and P. H. Leslie, for appellant.

Jas. Donovan, for the State.

CALLAWAY, C.

George Hliboka, having been found guilty of the crime of murder in the first degree, was sentenced to be hanged. From this judgment, and from an order denying his motion for a new trial, he has appealed to this court.

The only error which has been argued by his counsel in their brief is that the information under which he was convicted does not charge any greater crime than that of murder in the second degree. The information charges that the defendant did the murder willfully, unlawfully, feloniously, premeditatedly, and of his malice aforethought. It is argued that the information does not charge murder in the first degree, for the reason that the word “deliberately” is not included among the charging words.

There is a wide divergence of opinion between the adjudicated cases and text-writers upon the question which this contention presents. It can hardly be considered an open one in this jurisdiction, since the very able and exhaustive opinion rendered by the Supreme Court of the territory in Territory v. Stears, 2 Mont. 324, which has been followed or cited with approval in Territory v. McAndrews, 3 Mont. 158;Territory v. Godas, 8 Mont. 347, 21 Pac. 26;Territory v. Johnson, 9 Mont. 21, 22 Pac. 346;State v. Northrup, 13 Mont. 522, 35 Pac. 228; and State v. Metcalf, 17 Mont. 417, 43 Pac. 182. The Stears decision is in consonance with the great weight of authority in this country, and, we think, with sound reason. The basic principle underlying the doctrine announced in that case is that the Legislature has the right to define the crime of murder, to divide it into degrees, and to prescribe the method of determining the degree in a particular case. That it has such power is undisputed by any one, and that it has exercised it is readily seen by an inspection of the following sections of the Penal Code, viz.:

“Sec. 350. Murder is the unlawful killing of a human being, with malice aforethought.

“Sec. 351. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

“Sec. 352. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murder are of the second degree.

“Sec. 353. Every person guilty of murder in the first degree shall suffer death; and every person guilty of murder in the second degree, is punishable by imprisonment in the State Prison not less than ten years.”

“Sec. 2145. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

There is but one crime of murder, and its division into degrees is simply for the purpose of adjusting the punishment “with reference to the presence or absence of circumstances of aggravation.” Davis v. Utah, 151 U. S. 262, 14 Sup. To. 328, 38 L. Ed. 153. The custom of punishing murderers in different modes, commensurate with the aggravation of their crimes, is not a new nor even a modern one. It has obtained from the earliest times. Numerous examples are given by Blackstone (Book 4, c. 14). If murder in the first degree and murder in the second degree were two different crimes, then they should be so charged, and there would be no necessity for the jury to find the degree of the crime at all. It would only be necessary for the jury to find that the defendant was guilty in manner and form as charged in the information.

In Territory v. Stears, supra, the court comments upon the fact that an indictment for murder at common law charged that the defendant “feloniously, willfully, and of his malice aforethought” did the act that caused the killing. Under such an indictment the defendant could be convicted of murder in the first degree, and, before a conviction of murder in the first degree could be had at common law, it was necessary, precisely as it is under our statute, that the element of settled deliberation, premeditation, purpose, and design enter into the crime. The court says that inasmuch as our statutory definition of murder is, in legal effect, the same as the common-law definition, and we have adopted the common-law description of the crime, an indictment for murder, good at common law, is good under our statute.

A majority of the courts of last resort in the United States hold that the words “deliberately” and “premeditatedly” are not essential to make a good indictment or information for murder in the first degree. Such is the rule in Alabama, California, Colorado, Connecticut, Dakota, Idaho, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North...