State v. McGowan

• Decision Date: 25 January 1908
• Citation: 93 P. 552,36 Mont. 422
• Parties: STATE v. McGOWAN.
• Court: Montana Supreme Court

93 P. 552

36 Mont. 422

STATE v. McGOWAN.

Supreme Court of Montana

January 25, 1908

Appeal from District Court, Teton County; J. E. Erickson, Judge.

Daniel McGowan was convicted of murder in the second degree, and he appeals. Affirmed.

J. G Bair, O. D. Gray, and J. W. Freeman, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

SMITH J.

The above-named defendant was convicted in the district court of Teton county of the crime of murder in the second degree, and from a judgment of conviction and an order denying his motion for a new trial he has appealed.

The first contention of his counsel is that the information does not state facts sufficient to constitute a public offense and is not direct and certain as to the particular circumstances of the offense sought to be charged. These questions were raised by demurrer in the court below. The charging part of the information reads as follows: "That the said Daniel McGowan, of the county of Teton, on the 18th day of March, A. D. 1906, at the county of Teton, in the state of Montana, in and upon one Charles Arnold, then and there being, did feloniously, willfully, deliberately premeditatedly, and of his malice aforethought make an assault with a certain shotgun, which then and there was loaded with gunpowder and leaden bullets, and by him, the said Daniel McGowan, had and held in both his hands, he, the said Daniel McGowan, did then and there feloniously, willfully, deliberately, premeditatedly, and with his malice aforethought shoot off and discharge at and upon the said Charles Arnold thereby, and by thus striking the said Charles Arnold with the said leaden bullets inflicting on his back mortal wounds, of which said mortal wounds the said Charles Arnold died on the 18th day of March, A. D. 1906, in the county of Teton, state of Montana. And so the said Daniel McGowan, in the manner and form aforesaid, did feloniously, willfully, deliberately, premeditatedly, and with his malice aforethought kill and murder the said Charles Arnold," etc. It will be observed that the charge is not expressly made that the shotgun was shot off and discharged at and upon the body of Charles Arnold, and this is the point made by the defendant. It is evident that the pleader omitted the word "which" between the word "hands" and the word "he." The information being so drawn, it becomes necessary to analyze the charging part thereof, in order to determine whether or not the statutory requirements have been complied with. Section 1832 of the Penal Code provides than an information must contain a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. This statute embodies two provisions: (1) There must be a "statement in *** language," and (2) that statement must be so framed as to enable a person of common understanding to know what is intended. Now, we apprehend that, although a person of common understanding may know what is intended to be charged, that knowledge must be based upon the language employed; otherwise, the statute is not satisfied. In this case we undertake to say that a person of common understanding would know that the defendant was charged with murder in the first degree. The defendant is therefore presumed to have had that knowledge, and he was in no way prejudiced by the peculiar phraseology of the information. But, unless the pleader employs language embodying the charge intended to be made, he falls short of compliance with the statute; otherwise, the defendant would be charged by mere inference, which may not be done.

Recurring, then, to the information, and omitting certain parts thereof, we find that defendant is accused of the crime of murder as follows: "That the said Daniel McGowan, on the 18th day of March, 1906, *** at the county of Teton and state of Montana, in and upon one Charles Arnold, then and there being, did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought make an assault with a certain shotgun, which then and there was loaded with gunpowder and leaden bullets, and by him, the said Daniel McGowan, had and held in both his hands, *** thereby and by thus striking the said Charles Arnold with the said leaden bullets inflicting on his back mortal wounds, of which said mortal wounds the said Charles Arnold died on the 18th day of March, 1906." We have omitted these words: "He, the said Daniel McGowan, did then and there feloniously, willfully, deliberately, premeditatedly, and with his malice aforethought, shoot off and discharge at, and upon, the said Charles Arnold." Is it permissible, under the rules of criminal pleading, to omit the foregoing? It will not be contended that the words last quoted mean anything standing alone, because there is no allegation there that McGowan discharged any weapon at Arnold. We are to inquire, then, whether in construing the information we are allowed to treat them as surplusage, and whether without them the information charges murder. Section 1842 of the Penal Code provides that no information is insufficient by reason of any defect or imperfection in matter of form which does not tend to prejudice a substantial right of the defendant upon its merits. If the information, without the words last quoted, sufficiently charges murder, then those words may be treated as surplusage, and disregarded. State v. Phillips, 36 Mont. 112, 92 P. 299; State v. Mitten, 36 Mont. 376, 92 P. 969.

The words that we have in mind to disregard involve simply an attempt to state the manner in which the shotgun was used in the assault. There is no allegation that the gun was discharged. In the case of Ray v. State, 108 Tenn. 282-295, 67 S.W. 553, 556, the court said: "It is insisted that the indictment is too vague as to the manner in which the deceased was killed, because, under the language used in the indictment, he might have been scared to death, which would not be murder in the first degree, or he may have been beaten to death. We think the language is broad enough to convey the idea of a battery. The indictment in this case charges that the prisoner, 'with a certain dangerous weapon, to wit, a gun, which he in his hands then and there had and held, in and upon the body of one Gene Prentiss feloniously, willfully, deliberately, and premeditatedly, and with malice aforethought did make an assault upon the body of said Gene Prentiss, and did then and there unlawfully, *** by the means and in the manner aforesaid, kill and murder the said Gene Prentiss, against the peace and dignity of the state.' The charge that the defendant did then and there kill and murder him implies battery, and is sufficient. It is true that murder must be committed by an act applied to or affecting the person either directly, as by inflicting a wound, or indirectly, as by exposing the person to a deadly agency or influence, from which death ensues. Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711. The working upon the fancy of another, or treating him harshly or unkindly, by which he dies of fear or grief, would not constitute this offense. State v. Turner, Wright (Ohio) 20. At common law it was only necessary to charge that A. B., on a certain day and year, feloniously, willfully, and of his malice aforethought, did kill and murder one C. D. *** In an indictment for murder in the first degree, it is not necessary to state in so many words that the pistol was loaded with powder and ball, or that the wound was made with the ball; nor is it necessary to charge that the wound was inflicted with a particular weapon." See, also, 21 Cyc. 845. In the case of Alexander v. State, 3 Heisk. (Tenn.) 475, it was held that an indictment for murder which did not specify the weapon used was good. The court said: "The assault recited is not the gravamen of the charge. That is only inducement to the real charge, which is that of killing and murdering; and, as the assault was followed by killing and murder as its consequence, it is not necessary to state the weapon with which the assault was made or the killing consummated." The information in the case at bar is much more specific in its allegations than was the indictment in the case last cited. The Supreme Court of Georgia has decided that, in an indictment for murder by shooting with a pistol, it is not necessary to aver that the pistol was loaded with gunpowder and a leaden ball, or that the fatal wound was inflicted with a ball. Peterson v. State, 47 Ga. 524.

Murder, in this state, is the unlawful killing of a human being with malice aforethought. Allegations sufficient for a common-law indictment for murder are sufficient for an information under the statute. Territory v. Stears, 2 Mont. 324; State v. Lu Sing, 34 Mont. 31, 85 P. 521. We are of opinion that this information is sufficient to enable a person of common understanding to know what was intended to be charged therein, that that knowledge may be derived from the language employed, and that the defendant was in no wise prejudiced in any of his rights by the peculiar wording thereof or the employment of words unnecessarily inserted therein.

The next contention urged is that the court erred in admitting in evidence a certain shotgun shell, taken by the witness Connelly from the defendant's gun after the defendant had delivered the gun to a deputy sheriff. After the witness had testified that the shells produced at the trial were the same shells taken from the gun, defendant's counsel objected to the admission in evidence of one of them "as not properly identified," and he now argues that it was not shown that the shell was in the same condition as when taken from...