State v. Martin

• Decision Date: 17 August 1909
• Citation: 54 Or. 403,103 P. 512
• Parties: STATE v. MARTIN.
• Court: Oregon Supreme Court

103 P. 512

54 Or. 403

STATE v. MARTIN.

Supreme Court of Oregon

August 17, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Edward Hugh Martin was convicted of manslaughter, and he appeals. Affirmed.

See also, 100 P. 1106.

John A. Jeffrey (Seneca Fouts, Clinton A. Ambrose, and Chas. E. Lenon, on the brief), for appellant.

J.H Page (Geo. J. Cameron and A.M. Crawford, on the brief), for the State.

SLATER J.

The defendant was, by information, charged with the crime of murder in the first degree, and upon trial was convicted of manslaughter. The charging part of the information is as follows: "The said Edward Hugh Martin, on the 1st day of May, A.D.1908, in the county of Multnomah and state of Oregon, then and there being, did then and there unlawfully feloniously, purposely, and of his, the said Edward Hugh Martin's, deliberate and premeditated malice, kill and murder one Nathan Wolff, by then and there unlawfully, feloniously, purposely, and of his, the said Edward Hugh Martin's, deliberate and premeditated malice, striking, hitting, and beating him, the said Nathan Wolff, with a sharp instrument, a more particular description of which is to the district attorney unknown, contrary to the statutes made and provided, and against the peace and dignity of the state of Oregon." From the judgment entered against him, the defendant has appealed; but, having failed to procure and file a bill of exceptions, the only subject of inquiry is the sufficiency of the information.

It is urged in his behalf that there is no crime charged because there is a failure to allege: (1) Both an intent to assault and an intent to kill; (2) malice aforethought in words which will bear no other reasonable construction, both as to the wounding and the killing; and (3) the time of the death of the person assaulted. In support of these several propositions, it is claimed that that part of the information preceding the word "by" is not of the charging part, and states only a conclusion of law. The following cases are some of those particularly urged upon our attention as holding in accord with counsel's contention: Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 307; Schaffer v. State, 22 Neb. 557, 35 N.W 384, 3 Am.St.Rep. 274; State v. Linhoff, 121 Iowa, 632, 97 N.W. 77; People v. Cox, 9 Cal. 32. The indictments there considered were attempted to be drawn in form as at common law. For instance, in Fouts v. State, supra, which seems to be a leading case, the indictment was intended to charge murder. First there is alleged in legal terms, with words descriptive of the intent and premeditated malice, a felonious assault with a certain weapon inflicting a particular mortal wound, describing it, which resulted in death at the instant or at a subsequent time. Because the indictment did not contain, in the description of the crime, a direct and specific averment...