10 Colo. 208 | Colo. | 1887
The indictment in this case charges that defendant unlawfully, feloniously, wilfully, purposely, and of his malice aforethought, did kill and murder the deceased, Under this indictment defendant was tried upon the theory that he might be convicted of murder in the first degree. Such proceeding, his counsel assert, was a fatal error. They claim that the words used are wholly insufficient to warrant the jury in finding that the killing was done with deliberation and premeditation,— a finding necessary in this case to such a conviction as would authorize the death penalty. They contend that, to sustain such a finding, the indictment itself must, under section 709 of the General Statutes, adopted in 1883, aver that the killing was done with deliberation and premedi
It cannot be said that, since defendant was only convicted of murder in the second degree, he could not have been prejudiced through the error committed by putting him upon trial for his life, if error there was in so doing.
Under statutes substantially similar to the one upon which counsel rely, two views relating to the subject in hand have been taken. Mr. Bishop, in a lengthy and able argument, affirms the proposition above stated and urged upon us. Supporting him are the decisions of courts of last resort in Iowa, Ohio and Kansas, together with strong dissenting opinions in Wisconsin and other states. 2 Bish. Grim. Proc. (2d ed.) §§ 562-609, and note. On the other hand, Mr. Wharton declares that, “ according to the great weight of authority, a common-law indictment for murder is sufficient to support, under the statutes, murder in either first or second degree.” 2 Whart. Orim. Law, § 1115, and cases cited. It is scarcely necessary to state that common-law indictments do not, as a rule, use the words “deliberation and premeditation,” and that the indictment before us sufficiently charges the offense at common law.
We deem it unnecessary to discuss at length the relative merits of the two positions thus taken in this legal controversy, because —
First, they relate to what is hardly, in this state, an open question. In the year 1870 an amendment to the Criminal Code was adopted, the first and second sections of which provided that when, upon a trial for murder, the jury convicted, and stated in their verdict that the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony, the punishment should be death; but if the jury returned a verdict of guilty, without declaring that the killing was deliberate or premeditated, or was done in the perpetra
In Hill v. People, 1 Colo. 436, the identical question now presented was submitted and passed upon by the court under the act of 1870. The indictment in that case, like the indictment in this, failed to aver that the killing was done with deliberation or premeditation; yet the court held it sufficient, although the accused was found guilty of premeditated murder, and sentenced to death. The learned judge who wrote the opinion rested his argument mainly upon the proposition that the expression “malice aforethought” is co-extensive in meaning with the words ‘ ‘ deliberation ” and ‘' premeditation. ” He says, in discussing this expression, that its primary and popu
No docti’ine of the criminal law is more axiomatic than that the indictment must fully and fairly chax’ge the offense for which the accused is put upon trial; axid, if the language of the Bedus indictment does not comply with this essential requiremexxt, no x’easoning, however ingenious, will avoid the force of Mr. Bishop’s argumexxt, or the application of his conclusioxi. But we believe that the language of this indictment is sufficient. The expression “feloniously, wilfully, and of his malice aforethought, did kill and murdex*,” states the quo animo of the slayer, as well as the fact of the homicide. It charges, not only'the specific intent of the slayer to take life, but also (accepting Lord Coke’s definitioxx, above givexx) that the intent, together with the malevolence, wds prepense, — aforethought. This malevolent design to kill may have been formed at the instant of the homicide, or it may have existed in the mind of the slayer for a considex’able period before it was put into execution.
Secondly. Neither of the acts under consideration creates or recognizes a neto offexise. They both assume that
Passing from the indictment, a further objection is urged. It relates to the sixth instruction given by the court below. This part of the charge informed the jury that the testimony admitted, tending to show that deceased, when intoxicated, was a quarrelsome and dangerous man, was not material in determining the intent with which defendant acted, unless it appeared that he had, at the time of the homicide, knowledge of the de - ceased’s character in this respect. It is contended that evidence of this kind is admissible, and is to be considered by the jury, even if the defendant possessed no such information or knowledge. We shall enter into no lengthy discussion of this subject. There are isolated expressions, both in decisions and text-books, which
The true doctrine is thus stated by Mr. Wharton: “ Suppose the defendant should simply ask to prove that the deceased was ferocious and desperate as a ground of justification, the answer would be: ‘No man has a right to take the law in his own hands, and act as a sort of vigilance committee to clear society of dangerous persons.’ But, on the other hand, suppose the offer to be, not justification, but excuse on the ground of self-defense, or mitigation of the grade of guilt. If, in such case, it be proved that the defendant was actually attacked, and if evidence should be then tendered that the deceased was a man of ferocious temper or malignant passions, and of overpowering strength, and if it be, in addition, offered to be proved that the defendant had notice of these characteristics of the deceased, then the better opinion is that the evidence is admissible.” 1 Whart. Crim. Law (7th ed.), § 641; State v. Turpin, 77 N. C. 473; State v. Graham, 61 Iowa, 608; State v. Riddle, 20 Kan. 711.
Nor does the foregoing view conflict with the position announced by this court in Davidson v. People, 4 Colo. 145. By carefully reading the whole opinion, counsel will discover that they have misunderstood its purport. They will see that the prisoner’s knowledge of the deceased’s quarrelsome and dangerous character is specifically mentioned as an element bearing upon the consideration of evidence relating to such character.
The remaining objection presented is that the verdict
The judgment of the court below will be affirmed.
Affirmed.