Ward v. State
| Citation | 96 Ala. 100,11 So. 217 |
| Parties | WARD v. STATE. |
| Decision Date | 26 May 1892 |
| Court | Supreme Court of Alabama |
Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.
Steve Ward was convicted of murder in the second degree, and appeals. Affirmed.
S J. Darby, for appellant.
Wm. L. Martin, for the State.
The appellant was convicted of murder in the second degree. The motion in arrest of judgment raised the question of the sufficiency of the indictment to support the verdict and judgment. The indictment charges that the appellant "unlawfully and with malice aforethought, but without deliberation or premeditation, did kill Ed. Chapman alias Ed. Chatman, by shooting him with a pistol against the peace and dignity of the state of Alabama." The form given by the Code for an indictment for murder will support a conviction of the offense in either of its degrees. Code, §§ 4366, 4899, form 62. The indictment in the present case follows that form, with the exception that the words, "but without deliberation or premeditation," are inserted after "malice aforethought."
Malice aforethought is the ingredient in homicide which, at the common law and under our statutes, distinguishes murder from manslaughter. Gibson v. State, 89 Ala. 121, 8 South Rep. 98. Our statute has classified murder into two degrees. The classification is stated in the following language: "Every homicide perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree." Code, § 3725. When the homicide is not committed under one of the particular conditions of fact, the existence of either of which, by force of the special provisions of the statute, is sufficient to render the taking of life murder in the first degree, the malice which raises the grade of the offense above manslaughter, but is not accompanied by all the elements of willfulness, deliberation, and premeditation, which must concur to constitute murder in the first degree, unless the taking of life falls within one of the special conditions mentioned in the statute, may be...
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