State v. Nielson

• Decision Date: 06 March 1909
• Parties: STATE v. NIELSON.
• Court: Montana Supreme Court

100 P. 229

38 Mont. 451

STATE v. NIELSON.

Supreme Court of Montana

March 6, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Sofus Nielson was convicted of manslaughter, and from the judgment and an order denying a new trial, he appeals. Affirmed.

Breen & Hogevoll, for appellant.

Albert J. Galen, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.

BRANTLY C.J.

The information in this case charged the defendant and one William Warnecke with murder. Defendant, having been granted a separate trial, was convicted of manslaughter, and has appealed from the judgment and the order denying him a new trial.

The body of the information is as follows: "William Warnecke and Sofus Nielson are accused by James E. Murray, the duly elected, qualified, and acting county attorney in and for the county of Silver Bow, state of Montana, by this information in the name and on behalf and by authority of the state of Montana, of the crime of murder, committed by them, the said defendants, William Warnecke and Sofus Nielson, as follows, to wit: That at the county of Silver Bow, state of Montana, on or about the 29th day of September, A. D. 1907, and before the filing of this information, the said defendants, William Warnecke and Sofus Nielson, did willfully and unlawfully and feloniously, and of their deliberately premeditated malice aforethought, kill and murder one Chris. Stanisich, then and there being a human being. Contrary to the form," etc. While many assignments of error are made by counsel, only two are discussed in the brief. We shall therefore notice these only.

It is said that the terms "deliberately" and "premeditated" characterize the malice, and not the killing, and are therefore abortive as elements of the definition of murder in the first degree as laid down in the statute. The objection is without substance. "Murder is the unlawful killing of a human being with malice aforethought." Rev. Codes, § 8290. It is charged that the killing was with malice aforethought, and however else the condition of mind indicated by this expression is regarded as modified by the addition of the words referred to, the scope and meaning of the expression is not in any way restricted. It was pointed out by Mr. Chief Justice Wade, in the early case of Territory v. Stears, 2 Mont. 324, that an indictment was sufficient at common law which charged that the killing was done feloniously, willfully, and with malice aforethought, and that the elements of premeditation and deliberation were matters of proof, from which the jury should draw their own inference in fixing the degree. This form of indictment or information has been considered by this court since in several cases, and has always been held sufficient. Territory v. McAndrews, 3 Mont. 158; State v. Metcalf, 17 Mont. 417, 43 P. 182; State v. Hliboka, 31 Mont. 455, 78 P. 965; State v. Lu Sing, 34 Mont. 31, 85 P. 521; State v. Hayes, 38 Mont. 219, 99 P. 434. It is difficult, if not impossible, to distinguish between the expressions "deliberate and premeditated killing with malice aforethought" and "killing with deliberate and premeditated malice aforethought." State v. Metcalf, supra. For, so far as the elements of premeditation and deliberation enter into the state of mind accompanying the act of killing, the one expression imports them as much as does the other. As we have seen, these elements are matters of inference from the evidence, and it is not necessary to charge them. But were it necessary to charge them in order to sustain a conviction of murder in the first degree, the information here charges all the elements of murder in the second degree, and, since the defendant was convicted of manslaughter, a crime included therein, he cannot complain that he was not charged with murder in the first degree. If the information had simply charged manslaughter, it would have been sufficient to sustain the conviction. Williams v. State, 35 Ohio St. 175.

The further objection is made that the information is insufficient in that it does not charge the means by which the killing was done. This point was decided adversely to the appellant in the case of State v. Hayes, supra, and is too well settled in this jurisdiction to require discussion. State v. McGowan, 36 Mont. 422, 93 P. 552. See, also, People v. Hyndman, 99 Cal. 3, 33 P. 782; People v. Lee Look, 137 Cal. 590, 70 P. 660; People v. Ung Ting, 142 Cal. 341, 75 P. 899; People v. Suesser, 142 Cal. 354, 75 P. 1093.

It is plausibly contended that the court erred in submitting the following instruction: "(23) You must not be misled by evidence of aggravated trespasses about the ice pond, nor mistake the purpose of such evidence. None, nor all of said trespasses, nor injury or damage caused thereby, nor aggravation or annoyance due to them, nor anger or resentment justly aroused by them, justifies or excuses the killing of Chris. Stanisich by defendant. And, too, note that Chris. Stanisich was guilty of none of such trespasses, save the trifling one of shooting ducks the day he was killed. There are certain trespasses against occupied dwelling houses, and certain felonies that may be resisted and prevented at the time, to the extent of taking life, but not as punishment after the trespasses are completed. But where, as in the case of Chris. Stanisich, the trespass is on land and of a being inconsiderable, it cannot be resisted or prevented by taking life, nor by assault with, or use of, a dangerous weapon; for life and limb are sacred and especially within the protection of the law, and not to be taken or seriously injured or menaced, save for great and compelling offenses. The law affords ample redress for trespasses on a man's land, or against his property, of the character here testified to, but does not sanction taking life to prevent or punish them. So in this case the...