State v. McPherson
| Decision Date | 07 October 1901 |
| Citation | 87 N.W. 421,114 Iowa 492 |
| Parties | STATE OF IOWA v. ORMAN MCPHERSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Louisa District Court.--HON. 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, Attorney-General, and Charles A. Van Vleck Assistant Attorney-General, for the State.
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 the 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 the witnesses and the truthfulness of their evidence were for the jury.
I. 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, section 48, subd. 22). And see State v. Seamons, 1 Greene 418; Winfield v. State, 3 Greene 339. "The sign '&' for 'and' has been used in practice too long for a court 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." Molton v. State, 29 Tex. Ct. App. 527 (16 S.W. 423). And see State v. Reed, 35 Me. 489 (58 Am. Dec. 727); Com. v. Hagarman, 10 Allen 401.
II. The indictment alleges that the defendant "in and upon the boy 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 & bullet & 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 in-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 657, 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, premeditatedly, 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, 112 Iowa 411, 84 N.W. 520.
III. 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 well settled that no particular length of time of premeditation or deliberation is required. State v. Johnson, 8 Iowa 525, 530; State v. Hockett, 70 Iowa 442, 449, 30 N.W. 742; People v. Bealoba, 17 Cal. 389, 399; Wright v. Com., 33 Gratt. 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.L. 463, 509; Koerner v. State, 98 Ind. 7; State v. Dunn, 18 Mo. 419, 424; State v. Jennings, 18 Mo. 435, 443; Herrin v. State, 33 Tex. 638, 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 correctness of the instruction, and not to the sufficiency of the evidence. There was evidence before the jury from which they might properly find that the killing was premeditated two or three days before it took place.
IV. Objection was made to the calling of a witness whose name was not indorsed on the indictment, and who was not before the grand jury, on the ground that his occupation was incorrectly stated in the notice required in such cases by Code, section 5373. The notice given described him as an "electrician and manufacturer of electric and galvanized belts." It appeared...
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