State v. McPherson

• Decision Date: 07 October 1901
• Citation: 87 N.W. 421,114 Iowa 492
• Parties: STATE v. MCPHERSON.
• Court: Iowa Supreme Court

114 Iowa 492

87 N.W. 421

STATE

v.MCPHERSON.

Supreme Court of Iowa.

Oct. 7, 1901.

Appeal from district court, Louisa county; James D. Smythe, Judge.

Defendant was charged, under the name of Norman McPherson, with murder in the first degree in the killing of one John Finley. He answered that his right name was Orman McPherson, and pleaded not guilty. The jury returned a verdict of guilty in the first degree, and fixed the punishment at imprisonment for life. Defendant appeals. Affirmed.E. B. Tucker and D. J. O'Connell, for appellant.

Charles W. Mullan, Atty. Gen., and Charles A. Van Vleck, Asst. Atty. Gen., for the State.

McCLAIN, J.

There was no question as to the homicide. When Finley was killed he was the marshal of the town of Morning Sun, and seems to have had custody of defendant for some previous alleged disturbance. Defendant, in his testimony, denies that he had any knowledge or notice that Finley was marshal, or that he was making an arrest. He also testifies as to some threats made by others that he (defendant) would be mobbed, or run out of town, and in oral argument counsel for defendant suggested the theory that defendant acted in self-defense, under the impression that he was in danger of unlawful violence at the hands of Finley and others. It is not necessary to go into the details of the evidence as to the circumstances surrounding the homicide, or as to the difficulties in which defendant had been concerned on previous visits to Morning Sun. His home was at Keithsburg, Ill., and he had come to Morning Sun on this, as on previous, occasions for the ostensible purpose of visiting his child, which was in the custody of its mother, who was no longer living with him. There was ample evidence to sustain the verdict of the jury if the witnesses for the prosecution spoke the truth, and the credibility of these witnesses and the truthfulness of their evidence were for the jury.

1. The indictment charges the crime to have been committed on the “20 day of September,” and at various places in the indictment the sign “&” was used for the word “and.” The defendant contends that the use of these abbreviations rendered the indictment fatally defective; but, in view of the provisions of our Code (sections 5289, 5290) to the effect that the indictment is sufficient if it enables “a person of common understanding to know what is intended,” and is not to be held insufficient for any matter “which does not tend to prejudice the substantial rights of the defendant upon the merits,” it is plain that there is nothing in this objection. “The Roman numerals and Arabic figures are to be taken as a part of the English language” (Code, § 48, subd. 22). And see State v. Seamons, 1 G. Greene, 418;Winfield v. State, 3 G. Greene, 339. “The sign ‘&’ for ‘and’ has been used in practice too long for a court now to entertain an objection to its employment.” Pickens v. State, 58 Ala. 364. “The use of well-understood abbreviations in an indictment does not render it defective.” Malton v. State, 29 Tex. App. 528, 16 S. W. 423. And see State v. Reed, 35 Me. 489, 58 Am. Dec. 727;Com. v. Hagarman, 10 Allen, 401.

2. The indictment alleges that the defendant “in and upon the body of John Finley then & there being willfully, feloniously, deliberately, premeditatedly, & of his malice aforethought did commit an assault with a deadly weapon, being a pistol then & there held in the hand of the said Norman McPherson & loaded & charged with powder & bullett & then & there the said Norman McPherson with the specific intent to kill & murder the said John Finley, willfully, feloniously, deliberately, premeditatedly & of his malice aforethought did shoot off & discharge the contents of said deadly weapon at, against & into the body of said John Finley, thereby willfully, feloniously, premeditatedly, deliberately & of his malice aforethought inflicting upon the body of said John Finley a mortal wound, of which mortal wound the said John Finley did then and there die.” Defendant contends that under the cases of State v. McCormick, 27 Iowa, 402, and State v. Andrews, 84 Iowa, 88, 50 N. W. 549, these allegations are not sufficient to charge murder in the first degree. But it is to be noticed that the objection sustained to the indictment in those cases was that, while they alleged willful, deliberate, and premeditated assault with malice aforethought, they did not allege that such assault was with the intent to kill the deceased. In the indictment in this case it is charged that the assault was “with the specific intent to kill and murder” the deceased, and this is sufficient to make the indictment good under the well-settled practice in this state as explained in State v. Shelton, 64 Iowa, 333, 20 N. W. 459, and State v. Perigo, 70 Iowa, 658, 28 N. W. 452. It is difficult to see what further could have been alleged to show the commission of the crime charged. To have said that defendant willfully, deliberately, premeditately, and with malice aforethought murdered the deceased would have constituted the statement of a mere conclusion, and such a conclusion would not help out the indictment if otherwise insufficient. State v. Andrews, supra. As supporting the sufficiency of this indictment, see State v. Wood (Iowa) 84 N. W. 520.

3. Complaint is made of an instruction as to what will constitute such deliberation and premeditation as to render the homicide murder in the first degree. The court told the jury that: “It is not essential that the willful intent, premeditation, and deliberation shall exist in the mind of the slayer for any considerable length of time before the actual perpetration of the crime. It is sufficient if there was a fixed design or determination to maliciously kill, distinctly framed in the mind of such slayer, at any time before the fatal injury inflicted. And in this case, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant assaulted and shot the deceased at the time and place and in the manner charged in the indictment, and that either at some time before, or in the moment or instant of time immediately before, the fatal shot was fired, the defendant had framed in his mind a willful, deliberate, and premeditated design or purpose of his malice aforethought to take the life of the said deceased, and that the said fatal shot was fired by the said defendant in furtherance of that design or purpose, without any justifiable cause or lawful excuse therefor, then it may be said that the defendant acted with deliberation and premeditation, and you should find him guilty of murder in the first degree. But if you fail to find from the evidence, beyond a reasonable doubt, that the said fatal act of the defendant was accompanied with some degree of deliberation and premeditation, or that it was the result of a fixed determination on the part of the defendant to kill the deceased, you must then acquit the defendant of the crime of murder in the first degree.” It is well settled that no particular length of time of premeditation or deliberation is required. State v. Johnson, 8 Iowa, 525, 530, 74 Am. Dec. 321;State v. Hockett, 70 Iowa, 442, 449, 30 N. W. 742;People v. Bealoba, 17 Cal. 389, 399;Wright v. Com., 33 Grat. 880. The authorities seem to be in conflict as to whether it is error to instruct the jury that it is sufficient if they find that there was deliberation and premeditation at the instant of the killing, and this court has expressed the view that the intent to kill must have preceded the act of killing long enough to permit premeditation and deliberation. State v. Sopher, 70 Iowa, 494, 30 N. W. 917. But the instruction quoted above is not ambiguous on this point. It requires the jury to find that “either at some time before or in the moment or instant of time immediately before the fatal shot was fired the defendant had formed in his mind a willful, deliberate, and premeditated design or purpose of his malice aforethought to take the life of the said deceased.” It is well settled that, if the intent to take life is executed after deliberation and premeditation, though but for a moment or an instant, the crime may be murder in the first degree. State v. Johnson, supra; State v. Brown, 41 Minn. 319, 43 N. W. 69; Donnelly v. State, 26 N. J. Law, 463, 509; Koerner v. State, 98 Ind. 7;State v. Dunn, 18 Mo. 419, 424; State v. Jennings, Id. 435, 443; Herrin v. State, 33 Tex. 639, 645. Counsel for the defense quotes only the last sentence of the instruction as given above, and insists that it authorized the jury to look only at the instant of the killing in determining whether there was deliberation and premeditation; but, taken as a whole, the instruction cannot justly be given that interpretation. It is to be borne in mind that this discussion relates to the...