Territory v. Bannigan

• Decision Date: 31 December 1877
• Parties: Territory v. Bannigan.
• Court: South Dakota Supreme Court

46 N.W. 597

1 Dak. 451

Territory

v.Bannigan.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1877.

Error to district court, Burleigh county.

Indictment for murder, charged to have been done “willfully, feloniously, and with malice aforethought.” There was a verdict of “guilty of murder as charged in the indictment,” and the accused was sentenced to death.

Barnes, J., dissenting.Erwin & Griffin, for plaintiff in error. G. C. Moody, for the Territory.

BENNETT, J.

We have in the record before us, in form, a common-law indictment for murder, with a verdict of guilty as charged, and judgment of death. Is this indictment sufficient, under our statute, to sustain this verdict and judgment? Counsel for defendant insist that it is not, and that it charges only manslaughter in the first degree, for the reason that it does not charge in haec verba the homicide to have been perpetrated “with a premeditated design to effect the death of the person killed.” “Murder,” as defined by the common law, is “when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.” Our statute (section 242, Pen. Code) defines murder as follows: “(1) When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being; (2) when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; (3) when perpetrated without any design to effect death by a person engaged in the commission of any felony.” It will be observed that the words “with malice aforethought” are not employed in our statutory definition, and that a criminal homicide may rise to the higher degree of murder, though wanting in the element of premeditated design. What ingredient, if any, has our statute added to or eliminated from the crime of murder as it existed at the common law? If no ingredient has been added, and the crime remains substantially the same, though the phraseology used by our statute in defining it may be different, then this indictment must be held good. The rule contended for by counsel for defendant,that the indictment should bring the offense within the words of the statutes declaring it, is applicable only in its strict terms to cases where the offense is created by the statute, or where the punishment has been increased, and the pleader seeks to bring the prisoner within the enhanced punishment, or where new ingredients have been added either limiting or enlarging the original constituent elements of the crime. But, admitting the strictest construction of the rule, our statute provides that the “words used in a statute to define a public offense need not be strictly pursued in the indictment, but other words conveying the same meaning may be used.” Section 221, Code Crim. Proc. Homicide, as we have seen, was, at common law, murder, when perpetrated with malice aforethought, express or implied. “Express malice” has no uncertain legal meaning, and is defined, when used with reference to homicide, to be “when one with a sedate, deliberate mind and formed purpose doth kill another.” The legislature of this territory sought to popularize, so to speak, legal phraseology in framing the provisions of our Penal Code, and to make them plain to the common understanding of the citizen, who is presumed to know their meaning. And, with this purpose in view, in drafting the first subdivision of the section referred to, instead of the phrase “with malice aforethought” or “express malice,” the language of the best definition of these phrases conveying their meaning and import is employed,- “with a premeditated design to effect the death,” etc. But this change in phraseology was deemed necessary from another consideration, which is forcibly stated by Judge Nelson in the case of People v. Enoch, 13 Wend. 159, a case that arose under a statute of which ours is an exact copy. 2 Rev. St. N. Y. p. 657, § 5. That learned judge uses this language: “Malice aforethought, in common parlance, and as originally used, conveyed only the idea of express malice. Its meaning had been enlarged so as to include implied malice, by judicial construction, to define and limit which was the object and has been the only effect of the fifth section above referred to.” Under this judicial construction, malice aforethought had been made to include both express and implied malice, and would be applicable to the definition of murder as set forth in all three of the subdivisions of section 242, Pen. Code; but the first subdivision was, as declared by the supreme court of New York, intended to define murder in cases of express malice, and the second and third subdivisions in cases of implied malice, and this is, in general, the line of distinction drawn and observed by the statutes which divide murder into two degrees. Murder, under our statute, not being divided into degrees, and our statutory definition including in the different subdivisions both express and implied malice, and malice aforethought, as it has for so long time been construed and come to be understood, embracing both, they are the most apt and appropriate words to be used by the pleader in charging the crime. If the indictment charge, in the language of the first subdivision, the homicide to have been perpetrated with a premeditated design to effect death, the premeditated design, or express malice, must be proved. People v. White, 24 Wend. 520. And from this it would seem to follow that in such a case the defendant could not be convicted on evidence of implied malice, though coming clearly within the provisions of the second or third subdivision. It is true that at common law malice aforethought had a broader signification than it will bear when applied to murder as defined by our statute. Formerly, the prisoner might have been convicted upon proof of implied malice, which, under our statute, would only amount to manslaughter; where, for instance, the accused, while engaged in an unlawful act under the degree of felony, killed another against his intention. But this cannot prejudice or jeopardize the rights of the accused, for, in the language of Judge Nelson, in the opinion above referred to, “it is the business and duty of the court to see that a proper direction be given to the jury, in point of law, upon the evidence, and, if either court or jury err, the appropriate remedy must be sought.” In the case of People v. Enoch, supra, the chancellor uses this language: “From this examination of the subject, I have arrived at the conclusion that a common-law indictment for murder is proper under the provisions of the Revised Statutes, and a defendant cannot be convicted on such an indictment of a felonious homicide with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder.” And in the case of People v. Clark, 7 N. Y. 385, (under the same statute,) Johnson, J., holds that “the words ‘premeditated,’ ‘aforethought,’ and ‘ prepense’ possess, etymologically, the same meaning; they are, in truth, the Latin and Saxon synonyms, expressing a single idea, and possess in law precisely the same force. The statute, so far as this term is concerned, has not altered the law.” The court of appeals, in the case of Fitzgerrold v. People, 37 N. Y. 413, decided in 1868, after a careful review of the cases of People v. Enoch, People v. White, and People v. Clark, supra, sustain and reaffirm the doctrine that a common-law indictment, charging the offense of murder to have been committed “willfully, and of malice aforethought,” is sufficient under the statute. And in the case of Kennedy v. People, 39 N. Y. 245, the same court held that “an indictment for murder, in the common-law form, charging the killing with malice aforethought, is good, notwithstanding our statute has divided the crime of murder into different degrees.” And the doctrine is further laid down in the case that “the statute is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proofs requisite to a conviction.” That a common-law indictment for murder, under the statutes of New York, even since the crime has been divided into degrees, is sufficient, may be considered the settled doctrine of that state. In California, murder is divided into two degrees, and defined as follows: “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, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree.” Under this statute the supreme court of that state has uniformly held an indictment in the common-law form sufficient, charging the offense to have been committed with “malice aforethought.” People v. Lloyd, 9 Cal. 55; People v. Dolan. Id. 576; People v. Cronin, 34 Cal. 101;People v. Martin, 47 Cal. 101. The force of these authorities is not weakened by the consideration that the specific definition of the degrees is preceded by the general common-law definition of the crime in the California statute. Our statute says “homicide is murder in the following cases.” The question recurs, what is murder as here used? Being a word defined by law, it must be construed according to its legal meaning. Section 220, Code Crim. Proc. Therefore, supplying the definition, or all that is implied in the single word, we have in general arrangement the California statute, without the division into degrees. In the state of Pennsylvania, where murder in the first degree is defined to be “by means of poison, or lying in...