24 P. 430 | Nev. | 1890
The facts are stated in the opinion. Petitioner was jointly indicted with William Curnow for the *34 crime of murder. The charging portion of the indictment is as follows: "That heretofore, to-wit, on or about the 13th day of September, A. D. 1889, * * * in the county of Eureka, state of Nevada, the said defendants, William Curnow and Nicholas Curnow, did then and there feloniously, unlawfully, premeditatedly, and with malice aforethought, shoot and wound one William Courtney and inflict upon the body of him, the said William Courtney, a mortal wound, of which mortal wound the said William Courtney, * * * on or about the 18th day of October, A. D. 1889, * * * died." They were jointly tried under this indictment and found "guilty of an assault with intent to kill," and upon this conviction the court sentenced this petitioner to six years' imprisonment in the state penitentiary, where he is now confined. Petitioner contends that his imprisonment is illegal, because, as he claims, the verdict is absolutely void, and that the court had no jurisdiction to impose such a sentence.
Is the verdict rendered by the jury responsive to the issues raised by the indictment? Can a defendant under an indictment for murder be convicted of any offense less than manslaughter? The answer to these questions depends, to some extent, upon the evidence that was submitted at the trial, and it is questionable, to say the least, whether under the writ of habeas corpus they can be reviewed where the petition simply sets forth the indictment and verdict. It may be that under the proofs in this case the verdict was contrary to law, wholly unwarranted and unauthorized by the evidence. The only question, however, which we are called upon to determine in this proceeding is whether in any conceivable case, under any possible state of facts, such a verdict can be sustained upon a charge of murder in the form mentioned in the indictment. If it can, then it is admitted that petitioner should be remanded to the custody of the warden of the state prison. Our statute provides that "in all cases the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged." (Gen. Stat. Sec. 4292). It must be admitted that there are many cases where the crime of an assault with intent to kill is not necessarily included in the crime of murder. A defendant may, in certain cases, be convicted of murder in the first degree *35
when the evidence clearly shows that there was no intent whatever upon the part of the defendant to kill the deceased. If a defendant sets fire to a house, without any knowledge that it is inhabited by any human being, with the intent only to commit the crime of arson, and a person therein was killed by the burning of the house, the defendant could be indicted and found guilty of murder (Gen. Stat. Sec. 4620.) So in all the cases enumerated in section 17 of the act concerning crimes and punishment where the killing is committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary. (Gen. Stat. Sec. 4581.) This is precisely what was meant, and all that was decided in State v. Lopez.
There are other cases, that need not be here enumerated, where a conviction for murder could be sustained against a defendant without any direct proof of an intent on his part to kill, murder being the natural result and consequence of his unlawful act. But the assault and the intent with which the assault is committed by the defendant are, in a majority of cases, essential links in the chain of evidence necessarily included, as material ingredients constituting the crime of murder. These acts, being included as a part of the entire transaction, must necessarily be considered in determining the crime, if any, committed by the defendant. If the crime of which the defendant is convicted can be legally carved out of the crime of which he is indicted, the verdict is not void. In all cases of murder, where the injury inflicted by the defendant is the mediate or immediate cause of the death, the jury would only be justified, under an indictment for murder, in finding the defendant guilty of murder in the first degree, murder in the second degree, or manslaughter.
In People v. Adams, where the defendant was indicted for murder, and convicted of assault and battery, the supreme court, upon appeal, said: "It is certainly a little singular that an assault which is followed by death as its result should be regarded as anything but homicide. If a crime at all, it must have been murder or manslaughter, and a verdict clearing a party from that guilt is not in accordance with common sense." (
The questions involved in this proceeding have never been decided in this state, and it is only in rare and exceptional cases that they are liable to be raised. There are, however, cases in this and other states where analogous principles have been either decided or discussed which have a direct bearing — more or less — upon the subject. The principles involved are not, therefore, entirely new, novel, startling, or monstrous in their character.
In State v. Robey, the defendant was indicted for an assault with intent to murder, and was found guilty of "an assault with a deadly weapon, with intent to inflict bodily injury." The indictment charged that Robey, "without authority of law and with malice aforethought did shoot at William Newsom, with a shotgun loaded with powder and leaden bullets, with intent to kill him." It was claimed that the indictment would not sustain the verdict because it did not charge an intent to do bodily injury. This court, after reviewing several authorities, said: "After a careful consideration of this appeal we are of the opinion that the judgment is sustained alike by reason and authority. The defendant was fully informed by the indictment of the charge against him and of the means employed in committing it. He is accused of intent to murder by shooting; *37
murder by shooting cannot be effected without bodily injury. The offense of which he was convicted is therefore necessarily embraced in the one charged. By the indictment he is charged with the particular act of which he was convicted, but in a higher grade of crime." (
In People, v. Prague, similar in all respects to the Robey case, recently decided by the supreme court of Michigan, the court said: "Where the offense embraces different degrees, and the highest degree is charged, it has been held that the person charged may be convicted of any of the lesser degrees. Thus, If charged with murder in the first degree, he may be convicted of murder in the second degree, or of manslaughter, or of assault and battery. The reasons are that the offensesprings from the same transaction, and is supported bythe same class of testimony." (40 N. W. Rep. 243.) InState v. Smith, the court declined to pass upon the question whether a defendant could, in any case, under an indictment for murder, be convicted of a simple assault, as it was not involved in the case. It was, however, said that the only theory upon which defendant could have been acquitted of the homicide and convicted of assault "is that the wound inflicted was not the cause, mediate or immediate, of the death, a theory which derives no countenance from the testimony." (
In Wilson v. State, where it was held that the defendant could not, under the charge of murder, be convicted of "cruel and unusual treatment of a slave," the court said: "If a case shall arise in which a party has made an unlawful, felonious assault on another, inflicting a wound, and death follows the wounding, but from the evidence the jury are unable to say that the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault was made with the intent of taking life, a case may be presented authorizing the courts to punish for the assault with the intent to commit murder upon an indictment charging the commission of the offense. The record, however, does not present such a case, and its discussion would be premature at this time." (
In Com. v. Roby, 12 Pick. 504, cited and relied on by petitioner, Chief Justice Shaw was of opinion that the rule of the common: law, as stated in the last clause of the above section from Bishop, did not result from considerations peculiar to the administration of justice in England, "but from the broader consideration, that the offenses are, in legal contemplation, essentially distinct in their nature and character, and that this is manifest from an examination of the authorities." Entertaining this view, he held that in no case could a party on trial for the one, be convicted for the other." There are many cases which declare that the reason upon which the qualification of the rule was founded was that, upon a trial for misdemeanor in England, the defendant had the privilege of making a defense by counsel, to have a copy of the charge against him, and a special jury, which were not allowed in cases of felony. In this country the rights of the defendant to a fair and impartial trial are as full and complete, and in some respects greater, on a trial for felony than in cases of misdemeanor. Hence, in many of the states, the qualification, stated by Bishop, has been departed from, upon the ground that, the reason for it ceasing, the qualification ceased with it. In other states the qualification has been abolished by statute. It has also been abolished in England. There are, however, a few states that still adhere to the old common-law rule upon the subject. Whatever the weight of authority may have been at the time the Roby case in Massachusetts was decided, in 1832, we are of opinion that the views expressed by Chief Justice Shaw are not sustained by the weight of the authorities as they exist at the present time. (Hanna
v. People,
In Wright v. State, the court said: "Assault and battery, which is simply a misdemeanor, is not included in any of the degrees of homicide. The misdemeanor is merged in the felony. The assault * * * which results in death, must belong *39
either to felonious homicide embraced in murder or manslaughter; or to justifiable or excusable homicide, as the execution of a felon by due course of law, or in a proper measure of self-defense. In either event, the simple assault and battery no longer remains as such to be punished. It is either merged, justified or excused." (
It has frequently been decided that a defendant indicted for rape may be found guilty of an assault with intent to commit rape, or a simple assault, upon the reason that these minor offenses were necessarily included in the crime of rape. The question, however, does not solely depend upon the averments in the indictment, but also upon the character of the evidence at the trial, as cases have arisen where the facts showed that the assault was not a necessary ingredient of the crime of rape, or attempted rape. (State v. Pickett,
The indictment in the case of the State, v. Gray
simply charged that the defendant, "without authority of law and with malice aforethought, killed R. H. Scott, by shooting him with a shotgun." No question was raised in that case as to the sufficiency of the indictment; but the verdict, as well as certain instructions given by the court, was sustained upon the sole ground that the murder was committed by the defendant while attempting to commit a robbery. (
It was unnecessary, in the indictment for murder against petitioner, to allege an assault with intent to kill, in formal and express terms, but, under the averments in the indictment, all the facts and circumstances in relation to the shooting of the deceased could be given in evidence at the trial. The real questions, therefore, are, as before stated, (1) whether the *42 proofs upon the trial showed that there was an assault with intent to lull the deceased; and, (2) if there was such an assault, whether that offense is, upon the facts, necessarily included in the charge set out in the indictment.
Supposing, as we have, that the facts of the case tended to show that the death of Courtney was not in any manner to be attributed to the wound inflicted by the shooting, we proceed to consider the cases which are directly in point.
In State v. Scott,
In Bean v. State, the indictment charged the defendant with murder in the second degree, and he was convicted of an "aggravated assault and battery," and, notwithstanding the express provisions of the code, it was contended by counsel that the conviction could not be sustained because the essential elements of the latter offense were not set out nor embraced in *44
the charge in the indictment. The court, in reviewing this question, said: "Independently of this article 714, we are further of opinion that the indictment in this case is sufficient, even in setting forth the offense of an aggravated assault and buttery, under the seventh subdivision of article 488 of the Penal Code, which makes an assault aggravated `when a serious bodily injury is inflicted upon the person assaulted.' Now, the indictment charges that the appellant killed and murdered the deceased, by `striking, beating, bruising and wounding him with a stick.' It is clear that he could not have done this without inflicting bodily injury upon him. It is true, the exact statutory words which we have quoted are not used in the indictment, but the substituted words are, if not equivalent, certainly of more extensive signification than the statutory words, and this is all that is required." (
In Davis v. State, the defendant was indicted for murder, charged to have been committed by shooting the deceased with a gun, and was convicted of an assault with intent to kill. The statute of Arkansas is not essentially different in substance from the statute of our state. The court, upon the questions applicable to this case, said. "An assault with intent to kill, though a felony by our law, is not one of the degrees of homicide; but it is an attempt to commit murder, and is virtually included in every murder that is committed by violence. All the elements of murder, except the actual killing, must conspire to constitute the crime. * * * We, therefore, conclude that, following the analogies of the previous decisions of this court, reinforced, as they are, by direct provisions of the criminal code, if the proof fails to establish all the allegations of the indictment, so as to warrant a conviction of the offense presented, but at the same time shows the defendant is guilty of a substantial crime, necessarily contained in the terms of the indictment, he may be found guilty of the minor offense. Cases may readily be supposed where any other rule would operate to defeat justice; as, if the proof should show that the person alleged to have been murdered was not in reality dead, or that he died after the lapse of more than a year and a day, or from other causes than the wounds inflicted by the accused. * * * The present indictment is in the abbreviated code form, and does not in terms charge an assault upon the person of Adams, as the common-law form does. Yet, as it sufficiently charges *45
murder in the second degree, and as the offense for which the prisoner was convicted is necessarily included in that charged, it may suffice for the purpose, though there be no words specifically designating the offense so included" (
In Smith v. State, the defendant was indicted, with two other persons, for the murder of S. B. Canthron. The indictment, as in this case, charged that the offense was committed by shooting the deceased with a gun. There was testimony tending to show that Canthron may have died from the effects of pneumonia instead of from the wound. There was also testimony tending to show that the wound inflicted by the defendant was likely to bruise the lung and cause pneumonia. The defendant was convicted of murder in the first degree. Upon appeal he claimed that the court erred in refusing to give the following instruction: "If the jury believe from the evidence, beyond a reasonable doubt, that the defendant participated in the shooting of deceased, but fail to find that death resulted from said wound, they may find defendant guilty of an assault with intent to kill, but not of murder or manslaughter." The court said: "It is most probable from the testimony that Canthron died from pneumonia or congestion of the lung caused by the wound inflicted by the appellant, or so aggravated by it as to hasten death. In either event, the wound should be regarded as the juridical cause of death, and the prisoner held to the consequences. * * * But, in determining whether the court ought or ought not to have instructed the jury on the question of a lower offense included in the greater charge, we look to the record only to see if there is any testimony to base it on. (Fagg v. State,
In State v. Parker, the court said: "It is urged by counsel for defendant that the verdict of guilty of an assault with an intent to commit a great bodily injury, upon the indictment for murder, is unauthorized by law. Code, Sec. 4466, provides that `the defendant may be found guilty of an offense, the commission of which is necessarily included in that with which he is charged in the indictment.' It cannot be doubted that an assault is included in the crime of murder. Usually an indictment, in express words, charges an assault with felonious intent. Of necessity, an assault must have been literally committed in all cases of murder by direct violence. The intent with which the assault is committed relates to its character, and indicates its degree. It is discovered, not in the extent or nature of the violence, but in the animus of the perpetrator. It follows that an assault, whether with an intent to murder, to maim, or to inflict a great bodily injury, is included in the crime of murder. It is the settled doctrine of the law in this state that an assault is included in the crime of murder; the intent with which the assault is committed does not exclude it. This case illustrates the reasonableness of the rule we recognize. The indictment alleges assault upon the deceased, who was a child, the failure and refusal of defendant to furnish him with medical treatment and care, and the compelling of the child to work while wounded and bruised. Now, if the jury found that death resulted, not from the assaults and treatment received from defendant, but from disease, and also found that defendant did assault the child with intent to inflict a great bodily injury, their verdict is authorized by the law, the assault being included in the charge of murder." (
From this review of the authorities it seems to us perfectly clear that petitioner should not be either discharged, or remanded to the custody of the sheriff of Eureka county. Petitioner is remanded to the custody of the warden of the state prison. *47