Territory v. Young

• Decision Date: 31 August 1884
• Citation: 5 Mont. 242
• Parties: TERRITORY v. YOUNG.
• Court: Montana Supreme Court

5 Mont. 242

TERRITORY

v.YOUNG.

Supreme Court of the Territory of Montana.

August Term, 1884.

Appeal from a judgment of the district court of Gallatin county.

R. P. Vivion and J. B. Sanborn, for appellant.

J. A. Johnston, Atty. Gen., for respondent.

WADE, C. J.

This is an appeal from a final judgment rendered upon a verdict in which the defendant was found guilty of the crime of murder in the first degree. There was but one exception taken and saved during the trial, and that has been abandoned by counsel for the defendant in their briefs and arguments as unworthy of their consideration. That exception is based upon the proposition that the facts stated in the indictment do not constitute a public offense, in this: the indictment does not allege that the defendant had and held a certain gun, or had any weapon in his possession, at the time of the alleged killing, and that the said indictment is therefore uncertain. A reference to the authorities will conclusively show that such an allegation is unnecessary. In the case of Com. v. Costley, 118 Mass. 1, which was an indictment for murder, the defendant moved to quash the indictment, “because there is no allegation that the pistol named therein as the weapon with which the homicide was committed, was had or held by the defendant, at the time of the commission of the offense, in his, the defendant's, hand or hands.” The motion was overruled, and the defendant excepted. In deciding the question raised by the exception, Chief Justice GRAY said: “The only objection to the form of the indictment is for the omission to allege that the pistol was held in the hand of the defendant. This objection is supported by a statement in 2 Hale, P. C. 185, and by a case there cited, decided in the time of Queen Elizabeth. But the materiality of such an allegation has been denied or doubted by the later English writers on criminal law. 2 Hawk. P. C. p. 23, §§ 76-84; 1 East, P. C. 341; 1 Starkie, Crim. Pl. (2d Ed.) 92; 1 Russ. Cr. (3d Ed.) 558; Archb. Crim. Pl. (10th Ed.) 407. It is not necessary to a full description of the crime, nor in order to inform the defendant of the particulars of the charge which he is to meet, and, if inserted, need not be proved. We are of the opinion that it is of the same character as a description of the size of the wound, the omission of which does not affect the validity of the indictment.” Train & H. Crim. Pl. 274.

But though there were no other objections to the indictment at the trial, still the indictment must support the judgment, and the question as to whether it does or not can be, as it has been, raised in this court for the first time in this case. It is admitted by counsel for the defendant that the indictment is good for murder in the second degree, and that it is a good common-law indictment for murder. If this be so, then this case is within the decision of this court in the case of Territory v. Stears, 2 Mont. 326, which case is affirmed in Territory v. McAndrews, 3 Mont. 158, where it is held that an indictment for murder, good at common law, is good under our statute. More than this, the indictments in the Stears and McAndrews Cases are in every material particular the same as the indictment in the case we are considering. The only difference is in the conclusion of the indictments. In the Stears Case the indictment concludes as follows: “And so the jurors aforesaid, upon their oaths aforesaid, do further say that the said William H. Stears, the said Franz Warl, in manner and form aforesaid, then and there feloniously, willfully, and of his deliberate and premeditated malice, and of his malice aforethought, did kill and murder, contrary,” etc.

In this case, the indictment-after charging that the defendant, in and upon one Daniel McCarty, feloniously, willfully, unlawfully, deliberately, premeditatedly, and of his malice aforethought, did make an...