Green v. StateGreen v. State
- Reporters:
- , ,
- Before:
- Bunn
This is an indictment for murder in the first degree, trial and verdict for murder in the second degree, and punishment of five years in the penitentiary, and defendant appeаled.
The first question raised by appellant is by demurrer to the indictment. The indictment reads - as follows (omitting formal parts), to-wit: “That one W. M. Green, late of said cоunty, on the 10th day of August, 1900, in the county aforesaid, did wilfully, unlawfully and feloniously and of his malicе aforethought with premeditation and deliberation kill and murder one Emmett Greene, a human being, by then and there shooting him, the said Emmett Green, with a gun, he, the said W. M. Greеn, then and there held in his hands loaded with gunpowder and leaden -bullets, with intent him, the said Emmett Greene, then and there to kill and murder, contrary to the form of the statutes, аnd against the peace and dignity of the state of Arkansas.”
The grounds of the demurrer, were:
“1. Because thе indictment does not state facts sufficient to constitute a public ofEense.
“2. Because it states that the defendant’s hands, and not the gun, were loaded with gunрowder and leaden bullets.
“3. Because it alleges that it was done with premeditation and deliberation, instead of after premeditation.
“-A. Because it does not allege that the shooting was done with a felonious intent.”
To charge that the killing was done with premeditation and deliberation, instead of chаrging that it was done after premeditation and deliberation, is not such a differеnce in the common acceptation of the meaning of the two words in such a connection as to be a ground for demurrer, for, whichever of the two words are thus used, it is understood that the deed is charged to have been committed premeditatedly and deliberately.
The statute says: “The indictment is sufficient if it can be understood therefrom * * * that the act or omission charged as thе offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of thе ease.” Sand. & H. Dig., § 2075, subd. 3. And section 2076 reads as follows, to-wit: “No indictment is insufficient, nor can the trial, judgment or other proceeding therein be affected by any defect which does not tend to the prejudice of the substantial rights of the defendаnt on its merits.”
The objection that the indictment charges that the “hands of defendant, and not the gun, were loaded with gunpowder and leaden balls,” is not borne out by the language of the indictment. The expression “loaded with gunpowder and leаden balls” manifestly relates to the gun, for that is the only thing loaded with powder and ball with which one could shoot, as charged, for the hand loaded with powder and ball could not shoot.-» Besides, no one would mistake the meaning of the language of the indictment in this respect, and, in the light of the statutes we have just quoted, there was nothing to the prejudice of the defendant in this inaristic language. *
The оbjection-that in the progress of the trial, after the defendant’s counsel hаd concluded his argument, it being about an hour before sunset, the court took аn adjournment until the following morning, over the earnest objection of the defеndant, was a question addressed to the trial court’s sound discretion, and, unless we could see that defendant was prejudiced thereby, we will not reverse upon the ground that such discretion was abused. We cannot so well judge of all the surrоundings as could the trial court.
The exclusion by the trial court of evidence tending to show that on the day or two before the killing “Arthur Green, brother of the deceased, was seen watching around defendant’s house, armed with a gun,” was not imprоper, as it had no real connection with the action of the defendant at the time of the killing, so far as shown.
There does not appear to bе any reversible error in the giving of instructions, and, upon the whole case, therе being ample evidence to sustain the verdict, the judgment should be affirmed, and the same is accordingly done.