101 P. 198 | Or. | 1909
delivered the opinion of the court.
The court gave to the jury the law governing the three degrees of crime, murder in the first degree, murder in the second degree, and manslaughter, and in doing so stated the law in the language of the statute on the subject, which included the reference therein to the effect that if a person shall kill another while committing a felony, such as arson, robbery, etc., it shall constitute murder in the first degree. The general tenor of the court’s ' instructions, however, clearly indicated to the jury that the defendant was on trial, not for having committed murder while attempting to commit a felony, but with deliberate and premeditated malice, particularly instructing the jury that “the charge here is that the defendant purposely, and of deliberate and premeditated malice killed Harry M. Logan, and unless you find that the deliberation and premeditation are proven by some evidence herein sufficient to convince your minds, beyond a reasonable doubt, you cannot find him guilty of murder in the first degree.” No exception appears to have been taken to the court’s explanation of the different degrees in the manner stated, nor does it appear that defendant
On the other hand, Texas, by a divided court, takes the opposite view. See Sharpe v. State, 17 Tex. App. 487. The holding on the subject by the courts of each of these states are supported by eminent authority. It is thus obvious that the question is one not easy of solution, and one which we should not determine until properly before us. As to what may be the rule in this State, which in its organic law provides that the accused, in all criminal prosecutions, shall have the right to a public trial and “to demand the nature and cause of the accusation against him, and to have a copy thereof * * ” (Section 11, Article I, Constitution of Oregon), which is supplemehted by a statute to the effect that an indictment to be sufficient must be direct and certain as regards the crime charged, must charge but one crime, and in one form only, and which gives forms therefor (Sections 1305, 1306, 1307, 1308, B. & C. Comp.), in reference to which one form is provided for murder in the first degree with deliberation and premeditation, and another in the same degree for murder committed while attempting a felony, has not been passed upon by this court; nor has the question been squarely presented for adjudication, and, in view of the testimony presented by the record, the consideration thereof is not essential to its determination in this case. Whatever may be the proper rule to be invoked upon the subject, there can be no doubt that the testimony of Hilts, with reference to how the killing occurred, as disclosed by the statements of defendant to him, was- properly admitted; for the attempt at robbery and the killing were so closely connected and interwoven as to be inseparable, and it certainly could not be held that available testimony tending to explain and prove the killing must be excluded merely because connected therewith is a reference to some additional felony, even though it should not be sufficient, in the
Construing all of the facts and circumstances disclosed in the unfavorable light to defendant, in which the jury under the law were entitled to interpret them, while not by any means conclusive, and perhaps such that, with reference to the guilt, or innocence, or degree of guilt, as the case might be, of the defendant, different conclusions may be deducible therefrom, the showing, under our procedure, was sufficient to entitle the jury to determine whether any deliberation or premeditation accompanied the crime, and the cause was therefore properly submitted to them for their consideration. State v. Ander
It follows that under the record presented, and law applicable thereto, the judgment of the court below must be affirmed. Affirmed.