State v. Holong

• Decision Date: 30 April 1888
• Citation: 38 Minn. 368
• Court: Minnesota Supreme Court
• Parties: STATE OF MINNESOTA <I>vs.</I> NELS O. HOLONG.

38 Minn. 368

STATE OF MINNESOTAvs.

NELS O. HOLONG.

Supreme Court of Minnesota.

April 30, 1888.

The defendant was tried and convicted, in the district court for Otter Tail county, Baxter, J., presiding, on an indictment for murder in the first degree, and was sentenced to death. He appealed to this court, and on April 10, 1888, moved for stay of execution. An order denying the motion was entered April 11, 1888, and afterwards the following opinion was filed.

H. E. Day, Thomas Canty, and P. O. Noben, for the motion.

M. E. Clapp, Attorney General, against the motion.

GILFILLAN, C. J.¹

The defendant was convicted, in Otter Tail county, of the crime of murder in the first degree, and in November last was sentenced to be confined in the common jail of Otter Tail county for the period of 90 days, and thereafter, at a time and place fixed by the governor, to be hanged. At the expiration of the 90 days the governor issued his warrant, directing the sheriff of the county to cause execution of the sentence to be done on defendant on Friday, the 13th day of April inst. On the 4th day of April inst. the defendant appealed from the judgment to this court, and now moves the court for a stay of execution pending the appeal. On the motion his counsel states the grounds on which the appeal is taken, which are that the indictment is insufficient to justify a conviction for murder in the first degree; that the statute which authorized the governor, in capital cases, to cause execution to be done by issuing his warrant for that purpose, has been repealed by the Criminal Code. If we entertained any doubt on either of these propositions, we would not hesitate, in so grave a case, to stay execution until they could be fully and formally argued and determined in this court. But the propositions are entirely groundless.

The objection to the indictment is that, instead of alleging the killing to have been done "with malice aforethought," the words used in the form given for an indictment for murder in Gen. St. 1878, c. 108, § 2, it alleges the killing to have been done "with the premeditated design to effect the death," the words used in the Criminal Code, § 152, in describing the crime of murder in the first degree. It has been frequently held in this court that, where the statute gives a form for an indictment, that form may be followed. It has also been decided that a charge in the indictment may be made in the words of the statute defining the offence, "when, by using those words, the act in which an offence consists is fully, directly, and expressly alleged, without any uncertainty or ambiguity." State v. Comfort, 22 Minn. 271. In that case, it is true, no form was given in the statute. It is claimed, however, that in the case of a common-law offence the statutory form of an indictment, if there be one, must be followed or the form of indictment at common law used. The statute (Gen. St. 1878, c. 108, § 1,) provides that the indictment shall contain — "Second, a statement of the acts constituting the offence, in ordinary and concise language, without repetition." Section 2, c. 108: "It may be in the following form." Section 9, c. 108: "Words used in the statutes to define a public offence need not be strictly pursued in the indictment; but other words,...