Walcher v. Territory Oklahoma

• Decision Date: 13 June 1907
• Citation: 1907 OK 61,18 Okla. 528,90 P. 887
• Parties: JAMES WALCHER v. THE TERRITORY OF OKLAHOMA
• Court: Oklahoma Supreme Court

1907 OK 61

90 P. 887

18 Okla. 528

JAMES WALCHER v. THE TERRITORY OF OKLAHOMA

Supreme Court of Oklahoma

Decided: June 13, 1907

Syllabus

¶0 1. MURDER--Indictment--Language. An indictment for murder need not charge the offense in the language of the statute defining the crime; the use of words of equivalent meaning is sufficient. The averment that the homicidal act was done purposely; of one's deliberate and premeditated malice and with the intent to kill, is equivalent to the averment that it was done with a premeditated design to effect death, and will support a conviction for murder

2. APPEAL AND ERROR--Case Made--Requirements. In cases of conviction for murder, this court will disregard technical defects in the records and will afford the prisoner every right consistent with a due regard for the reasonable rules of practice and procedure, but the court cannot review alleged errors based upon a record which is neither a case made nor transcript.

Error from the District Court of Kingfisher County; before Clinton F. Irwin, Trial Judge.

J. C. Strang and Buckner & Son, for plaintiff in error.

J. C. Robberts and Dale & Bierer, for defendant in error.

BURFORD, C. J.:

¶1 The plaintiff in error was convicted of the crime of murder in the district court of Kingfisher county on November 3, 1902, and was by the judgment of that court sentenced to imprisonment for life at hard labor in the penitentiary. The plaintiff in error has attempted to appeal from said judgment, and after several efforts to complete a record the case was submitted for our determination. The record as now presented is incomplete, and it is doubtful if we have any jurisdiction to consider the case in any particular. But consenting to treat the record as a partial transcript, we have concluded that we may pass upon the one question of the sufficiency of the indictment to support the judgment, as raised by the motion in arrest of judgment which was presented, overruled and exception saved.

¶2 It is earnestly contended that the indictment does not contain a charge of murder, and that the court erred both in overruling the demurrer to the indictment and also the motion in arrest of judgment. It is claimed that the averments of the indictment bring it within the rule laid down by this court in the case of Holt v. Territory, 4 Okla. 70. The indictment in the case is as follows:

"In the District Court in and for Kingfisher County, and Territory of Oklahoma.

"TERRITORY OF OKLAHOMA v. JAMES WALCHER

"INDICTMENT.

"We the grand jurors of the Territory of Oklahoma, duly empaneled, sworn and charged, within and for the body of the county of Kingfisher and territory aforesaid, to inquire of offences committed therein at the May term, A. D. 1900 of the district court thereof, upon our oaths present and charge: That James Walcher on the 11th day of January, A. D. 1900, in the said county of Kingfisher and Territory of Oklahoma, in and upon one John F. Stone then and there being, unlawfully, purposely and feloniously and of his deliberate and premeditated malice, did make an assault with the intent him, the said John F. Stone, unlawfully, purposely and of a deliberate and premeditated malice, to kill and murder, and that the said James Walcher a certain gun then and there charged with gun-powder and leaden bullets, which said gun he, the said James Walcher, in his hands then and there had and held, then and there unlawfully, purposely, and of his deliberate and premeditated malice and with the intent to kill, did discharge and shoot off to, at, against and upon the said John F. Stone, and that the said James Walcher, with the leaden bullets aforesaid, of the gun aforesaid, then and there by force of the gun-powder aforesaid, by the said James Walcher discharged and shot off, as aforesaid, then and there unlawfully, purposely, and of his deliberate and premeditated malice, did strike, penetrate and wound with the intent aforesaid, thereby, then and there giving to the said John F. Stone in and upon the right side of the face and head and body of him the said John F. Stone, then and there with the bullets aforesaid, so as aforesaid discharged and shot out of the gun aforesaid, by force of the gun-powder aforesaid by the said James Walcher, in and upon the right side of the face, head and body of him the said John F. Stone, several mortal wounds of the depths of four inches and of the breadth of half an inch, of which said mortal wounds he the said John F. Stone instantly died, and so the grand jurors upon their oaths present and charge that the said James Walcher, him the said John F. Stone, unlawfully, purposely and of his deliberate and premeditated malice, did kill and murder. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Territory of Oklahoma.

"W. W. NOFFSINGER,

"County Attorney."

¶3 Our statute, vol. 2, Wilson's, sec. 2167, defines murder as "Homicide 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." Homicide is the killing of one human being by another, and when the killing is perpetrated without authority of law and the homicidal act is performed with a premeditated design to effect the death of the person killed, the homicide is murder. The definition contained in our statute is plain and unambiguous and...