Territory Montana v. Stears
| Decision Date | 31 August 1875 |
| Citation | 2 Mont. 324 |
| Parties | TERRITORY OF MONTANA, respondent, v. STEARS, appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Third District, Lewis and Clarke County.
STEARS was indicted at the March term, 1875, with Wheatley and another party, for the murder of Franz Warl. Wheatley and Stears were convicted, and Wheatley was hung June 29, 1875. Stears was again convicted at his second trial, and suffered death at the hands of the law.
J. J. WILLIAMS, for appellant.
J. K. TOOLE, District Attorney, Third District, for respondent.
The indictment in this case charges that the defendant, William H. Stears, on the 30th day of April, 1875, at the county of Lewis and Clarke, and Territory of Montana, etc.
Upon this indictment the defendant was tried, and the jury returned the following verdict: “We, the jury, find the defendant guilty, in manner and form as he stands charged in the indictment.”
Judgment was entered upon the verdict without objection, and the defendant sentenced to be hanged by the neck until dead.
There were no exceptions taken at the trial, no motion for a new trial or in arrest of judgment. The defendant, within three days of the time fixed for his execution, appeals to this court, and the question raised in the argument relates to the sufficiency of the verdict to support the judgment. The judgment rendered and sentence given were as upon a verdict of murder in the first degree. Does the verdict authorize the judgment and sentence?
Juries have been instructed in several murder cases in this Territory, that if they found the defendant guilty of murder in the first degree, to return such a verdict as was rendered in this case, and if the precedent is wrong, it cannot be corrected too soon.
1. The statute of the Territory requires that the jury before whom any person is indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or second degree. An analysis of the elements that compose the crime of murder in the first and second degree will show the reason of this requirement.
Under our statute murder is defined to be “the unlawful killing of a human being, with malice aforethought, either express or implied.” Murder thus defined is divided into two degrees--the first degree and the second degree-- but whether of the first or second degree, the killing must be unlawful, and attended with malice aforethought, either express or implied. Murder in the first degree is defined to be: “All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary.” All other kinds of murder are declared to be murder in the second degree. If the killing was occasioned in the absence of deliberation and premeditation, but accompanied with malice aforethought, either express or implied, and not in the perpetration or attempt to perpetrate either of the crimes above named, or by lying in wait, torture, or poison, the same would be murder in the second degree.
Murder at common law is thus defined: “When a person of sound memory or discretion unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.”
This is, in legal effect, the same as the general definition of murder, under our statute, and having adopted the common-law description of the crime, it follows that an indictment for murder, good at common law, is good under the statute.
An indictment for murder at common law charged that the defendant “feloniously, willfully, and of his malice aforethought,” did the act that caused the killing; and under such an indictment the defendant could be convicted of murder in the first or second degree.
Before a conviction of murder in the first degree could be had at common law, it was necessary, precisely as it is under our statute, that the element of settled deliberation, premeditation, purpose and design enter into the crime; that the murder should have been perpetrated by some kind of deliberate and premeditated killing, or by lying in wait, torture, poison, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, in which cases deliberation and premeditation were presumed; and before a conviction could be had of murder in the second degree it was necessary, as it is under our statute, to work out a conviction of murder in the second degree, that the murder be committed unlawfully and with malice aforethought, lacking the element of deliberation, which swells the killing to murder in the first degree; and a conviction for either of these degrees, as well for the first degree, the distinctive element of which is settled deliberation and premeditation, as the second degree, which lacks this element and is complete without it, could be had under an indictment charging the murder to have been committed feloniously, willfully and with malice aforethought.
Under an indictment charging the defendant with what constitutes murder in the second degree, and with that alone, a conviction could be had for murder in the first degree. If the defendant was charged with dealing a deadly blow, feloniously, willfully and of his malice aforethought, that produced death, which charge would amount to murder in the second degree, it might be shown under such indictment that the blow was given with a deliberate and premeditated design to kill, or that it was given while robbing or attempting to rob, etc., and death ensued, in which case the killing would be murder in the first degree, and a conviction could be had therefor. It need not appear on the face of the indictment of what degree the murder was, because murder being charged the jury are, by their verdict, to ascertain the degree thereof. The crime of murder under the statute being charged, and the means by which it was accomplished being set forth, the proof may show the aggravating circumstances of premeditation and deliberation, or that the killing was effected in the commission, or in the attempt to commit, either of the four crimes above stated, by which the murder is swelled into that of the first degree, when that which amounts to the second degree is only charged, and hence the propriety of requiring the jury, in their verdict, to designate the degree.
This indictment against Stears will furnish an illustration. Read the charge against him and leave out the words “of his deliberate and premeditated malice,” where they...
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State v. Dietz
...consider emission as an element of the offense of sodomy and to thus obviate the necessity of proving emission. In Territory v. Stears, 1875, 2 Mont. 324, at page 330, it is said: 'Our statute is a re-enactment of that of California, and the construction put upon it by the California courts......
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...our own statute is silent as to the manner of construction. State v. State Board of Examiners, 59 Mont. 557, 197 P. 988; Territory v. Stears, 2 Mont. 324; Lindley Davis, 6 Mont. 453, 13 P. 118; First National Bank of Butte v. Bell, etc., Min. Co., 8 Mont. 32, 19 P. 403; Price v. Lush, 10 Mo......
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...93-8003 and 93-8004 of the Revised Codes of Montana of 1947, supra, were all taken from the laws of California. In Territory v. Stears, 2 Mont. 324, at page 330, the court say: 'Our statute is a re-enactment of that of California, and the construction put upon it by the California Courts mi......
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...rule consistently adhered to by this court, that we adopted the construction thus placed upon it as a part of the law itself. Territory v. Stears, 2 Mont. 324; Lindley Davis, 6 Mont. 453, 13 P. 118; First National Bank of Butte v. Bell, etc., Min. Co., 8 Mont. 32, 19 P. 403; Price v. Lush, ......