Territory v. Layne

• Decision Date: 29 July 1887
• Parties: TERRITORY v. LAYNE.
• Court: Montana Supreme Court

7 Mont. 225

TERRITORY

v.LAYNE.

Supreme Court of the Territory of Montana.

July 29, 1887.

Appeal from district court, Beaverhead county.

Campbell & Duffy, for appellant.

W. S. Barbour, Co. Atty., for respondent.

BACH, J.

The defendant was convicted of an assault, with intent to murder, upon an indictment charging substantially as follows, omitting allegation of time and venue: “On the person and body of one James Sullivan, with intent him, the said James Sullivan, then and there to kill and murder, willfully, unlawfully, maliciously, and feloniously, did make an assault, with a certain pistol loaded with powder and leaden balls, *** and, by means of the powder and balls aforesaid, then and there discharged and fired off, in and upon the breast and body of him, the said James Sullivan, then and there did inflict a dangerous wound,” etc.

Defendant now appeals from the judgment, from the order of the court below overruling his demurrer to the indictment, and from an order denying a motion to set aside the indictment, for the reason that such indictment “is not signed by the district attorney of the Second judicial district, or by any other proper and authorized prosecuting officer.”

As to the motion to set aside the indictment, the transcript contains an extract from the minutes, in all respects similar to that mentioned in the case of Territory v. Harding, 6 Mont. 327, 12 Pac. Rep. 750. In fact it is the very same order, appointing, for certain reasons therein mentioned, Robert B. Smith to represent the territory as prosecuting attorney. Upon authority of that order, Mr. Smith acted as prosecuting attorney, and signed this indictment.

The case referred to is decisive upon this point, and the motion to set aside the indictment was properly denied.

The point relied upon, on the appeal from the judgment, is that the indictment will not support the verdict and judgment, which is substantially the same question as that raised by the demurrer, which was overruled. The demurrer was based upon the grounds following: “ First, that the acts constituting the offenses are stated in an ambiguous and uncertain manner; second, that more than one offense is charged in said indictment; third, that the facts stated do not constitute a public offense.”

The indictment is neither ambiguous nor uncertain, and it does not state more than one offense. It states certain alleged facts fully and clearly, perhaps describing with unnecessary fullness the acts complained of, and which constitute the assault alleged therein; but the one crime charged is the crime of an assault with intent to murder. This the counsel for defendant admit by relying in their brief upon the third ground stated in the demurrer. Counselfor appellant seems to conclude that the words “willfully, unlawfully, maliciously, and feloniously” are used in the indictment to qualify and define the words, “with intent *** to kill and murder.” We are of opinion that the former words are used to define and qualify the words, “did make an assault;” that is to say we think the pleader meant to define the act of assault, and not the intent to kill. At all events, the appellant does not suffer from that interpretation; and, as the indictment presents this question, when an indictment, after stating time and place, alleges that the defendant feloniously made an assault upon A. B., (stating the facts constituting the assault,) with the intent then and there to kill and murder the said A. B., does it contain facts sufficient to constitute a public offense?

In this territory, the unlawful killing of a human being is either murder or manslaughter. If to an indictment properly and fully alleging an unlawful killing, the words “malice aforethought” are properly added, then the indictment charges murder; if the other necessary words are added, then the indictment would charge murder in the first degree. The...