Wilson v. State
| Decision Date | 28 November 1928 |
| Docket Number | 26553 |
| Citation | 222 N.W. 47,117 Neb. 692 |
| Parties | MONA M. WILSON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Sheridan county: EARL L. MEYER JUDGE. Reversed.
REVERSED.
Charles E. Matson and R. L. Wilhite, for plaintiff in error.
O. S Spillman, Attorney General, and Lloyd Dort, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON and EBERLY, JJ., and REDICK and STALMASTER, District Judges.
This was a criminal prosecution against the plaintiff in error who will hereafter be called the defendant, commenced by the county attorney for Sheridan county, Nebraska. The information filed was very obviously drawn under section 9544, Comp. St. 1922, and was intended to charge the defendant with murder in the first degree by administering poison.
The information was filed July 22, 1927, and on the same day the defendant pleaded guilty and was sentenced by the court to a term of 30 years in the state penitentiary. It is nowhere apparent from the record that a jury was impaneled and sworn at any stage of the proceedings, and we must, therefore, assume that a jury was never called to consider or hear the case.
The defendant filed her petition in error in this court, setting forth seven assignments of error, but an examination of the transcript discloses that only the statutory ground of newly discovered evidence was assigned in the lower court as ground for a new trial. The motion for a new trial was filed August 27, 1927, and on the same day a motion in arrest of judgment was also filed, the reason therein set out being that "the facts stated in the information filed herein do not constitute an offense under the statutes of the state of Nebraska."
On January 26, 1928, both of these motions were overruled by the trial court, after which the petition in error was duly filed in this court.
In the brief filed by the defendant, twelve distinct propositions of law are presented for consideration. An examination of the transcript, however, discloses that only propositions numbered one to ten are necessary to the consideration of the matters presented for review.
The first proposition urged is that only the court and jury may determine the penalty to be imposed in first degree murder, and that a defendant charged with that offense cannot waive the statutory requirement of a jury to fix the penalty. The second is that, since the information does not state an offense under the laws of this state, the motion in arrest of judgment should have been sustained under the provisions of section 10159, Comp. St. 1922.
We shall consider the last-named proposition first and the first-named last, because of the manifest precedence the latter has over the former.
It then concludes with this final statement:
"And so the said county attorney, aforesaid, on oath doth say that the said Mona M. Wilson did murder her, the said Olive E. Loomis, as aforesaid, unlawfully, purposely, feloniously, and of her deliberate and premeditated malice, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Nebraska."
Since the concluding part of the information last quoted is nothing more than a mere conclusion arising from the facts previously stated and cannot cure any defects in the premises on which it assumes to be predicated, we must leave it wholly out of consideration in determining the sufficiency of the information. Schaffer v. State, 22 Neb. 557, 35 N.W. 384.
The material parts of section 9544, Comp. St. 1922, under which the information was drawn reads:
"Whoever shall purposely and of deliberate and premeditated malice * * * by administering poison, or causing the same to be done, kill another, * * * every person so offending shall be guilty of murder in the first degree."
There is much that might have been left out of the information as drawn without affecting the essential parts stated therein. This court has held that, where words appear in an information which might be stricken out, leaving an offense sufficiently charged, and such words do not tend to negative any of the essential averments therein, they may be treated as surplusage, and be entirely rejected. Hase v. State, 74 Neb. 493, 105 N.W. 253.
The information reduced to the simplest form merely states that the defendant unlawfully, purposely, feloniously and of deliberate and premeditated malice to kill and murder one Loomis with poison, did give and administer a deadly poison called strychnine to the said Loomis, knowing it to be a deadly poison, and that Loomis did take the poison so given and administered, by reason of which Loomis died on July 17, 1927.
We think this substantially recites all of the elements of the crime under section 9544, which states that whoever purposely and of deliberate and premeditated malice by administering poison kills another is guilty of murder in the first degree.
In charging the commission of an offense in an indictment, it is not necessary that the exact words of the statute be used, provided that the words employed are the equivalents in meaning of those contained in the statute. Hase v. State, 74 Neb. 493, 105 N.W. 253.
We think it not improper to suggest that the style employed for stating the offense is rather involved, but on the whole it is sufficient to meet the requirements of the...
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