112 Iowa 195 | Iowa | 1900
I. Our opinion announced on the former submission of this case (89 N. W. Rep.- 378)
1 “The court gave the following, among other instructions: '(1) The indictment in this case charges that the life of one Charles Selhusen was taken by having poison administered to him by the defendant, and that said poison wa$ so given to the said Selhusen with the intent to take his life. Under the charge in this indictment, the defendant may be convicted, the evidence warranting, of either one of the following grades of homicide: Murder in the first degree, murder in the second degree.’ '(8) If you have any reasonable doubt of the degree of the murder of whicUthe defendant is guilty, if guilty at all, you should only convict of such offense as you have no reasonable doubt of his guilt.’ The jury was further instructed as to the elements of murder in the first and in the second degrees, and wás told that the distinctive difference is that in the second degree it need not be shown that the murder was with deliberate, premeditated purpose to kill, while in the first degree deliberate, pre: meditated intent to take life must be shown. The' jury was also instructed: 'If you find the defendant not guilty of murder in the first degree, you will proceed to determine whether he is guilty of murder in the second degree.’ Of these instructions the defendant complains, and insists that under the indictment he cannot be convicted of murder in the second degree, that there is no evidence to sustain the finding of guilt in the second degree, and that under the evidence he .is either guilty in the first degree or not guilty. It is claimed on behalf of the state that under- the statute and this indictment, a conviction can be.had in the second degree,-that under the statute the jury was required to determine, the degree, and that the instructions complained of were not prejudicial to the defendant.
“The first question to be considered is whether, under a charge of murder—That is,- of killing a human being*198 with malice .afo'rethqrightr-ypcrpet-rated by means of poison, the accused may be convicted of murder in the second degree; or, in other words, whether there are degrees in murder perpetráted by means;of poison. Our statute provides as follows:
■ “ ‘Sec. 4727. Murder. Whoever kills any human being with malice aforethought, either express or implied, is' guilty of murder.;
■ ’ “ ‘Sec. 4728. First Degree. All murder which is perpetrated by means of poison, or lying in wait, or any other kind of: willful, deliberate ;and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary, is murder in the first degree, and shall be punished with death, or Imprisonment for life at hard, labor in the penitentiary, as determined by 'the jury, or by the 'court if the defendant pleads guilty.
“ ‘Sec. 4729. Second Degree. Whoever commits muf-der otherwise than as set forth in the preceding section is guilty of murder of the second' degree, and ■ shall be punished by imprisonment in the penitentiary for life, or for a term of not less than ten years.’ :
“The only authority cited that sustains the claim that in this case a conviction could be had in the second degree is State v. Dowd, 19 Conn. 388, wherein it is held, under statutes similar to ours, that, on an indictment for murder perpetrated by means of poison, the jury might find the accused guilty of murder in the second degrf°: In that case the court said: ‘In most of the cases mentioned in .the statute as constituting the crime of murder in the first degree, the lesser crime is manifestly included. Thus, if the -charge were that the murder was committed by the accused while lying in wait, the jury might find that it was not so committed, and -convict him only of the lesser offense. So, if ,it were averred that the act was done by him while attempting to commit the crime of arson or rape, the jury*199 might .find that part of the charge untrue, and still convict the prisoner of murder in the second degree. Now, if the same rule applies to a case where the charge is for murder by poisoning, then the conviction • in this case was legal. The language of the statute -strongly favors such a construction. It provides that murder perpetrated by means -of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, • shall be murder in the first degree; thereby implying that in all cases the crime must be the result of a willful, deliberate, and premeditated act. Hence, if any case can be supposed where murder may be committed by means of poison, and not be the result of such an act, then a conviction of murder in the second degree may be legal. And we do not feel ourselves authorized'to say that the case under consideration might not have been •one of that description, and consequently, that the verdict is not right. Indeed, we are rather inclined to consider such the fair construction of the statute, especially as it is a highly penal one, and such construction operates against the greater severity.’ The statute specifically declares that all murder — that is, the killing of a human being with malice aforethought' — perpetrated by means of poison is murder in the first degree, thus fixing the one and only degree of mur; ■der perpetrated by means of poison. We cannot conceive of a case where murder thus committed can be other than -of the first degree. Such a killing is not only with malice aforethought, but is by statute declared to be willful, deliberate, and premeditated, because, in the very nature of the act it must be so. It is impossible that one can with malice aforethought take the life of another by means of poison without doing so willfully, deliberately and, and premeditately. It is not suggested in State v. Dowd how such a ease can be murder in the second degree. When the charge is of murder by lying in wait, or other willful, deliberate, and premeditated killing, or in the" commission of any of the other crimes named, we have quite a different ease, as in*200 those cases there may be murder without the aggravating circumstances. One convicted of murder by .lying in wait is guilty in the first degree, but, if he committed the murder without lying in wait he is guilty in a less degree. His guilt of murder does not depend upon his lying p; wait, but simply the degree of his guilt, and so as to the other offenses named in section.4/728. In those cases there may be guilt of murder without the aggravating circumstances that fix the degree, but in murder perpetrated by: means of poison there is but one degree, and the crime either exists in that degree or not. at all. There .being but one degree of .the crime charged, the statutes and decisions as to. cases consisting of different degrees do not apply. In such case there is-no issue as to degree, and no degree to be determined by the jury. Robbins v. State, 8 Ohio St. 132, is not in point. In that ca.se the conviction was of the first degree, and the principal question discussed, is whether, in cases of murder' by means of poison, there..must have been .an intention to take life — a question not involved in this case. . In State v. Wells, 61 Iowa, 630, the conviction was in the first degree, and the question under consideration .was not passed upon, nor was State v. Dowd approved. The question there considered was whether an intent to. kill .must be .proven. It follows from what we have said that there can be -no state of the evidence that will warrant the defendant’s conviction in the second degree. He is either guilty in ,the first degree or he is not guilty of murder.. In State v. Cater, 100-Iowa, 502, we held that the statute requiring, the. jury to-find as to the degree does no apply where the facts, show that the defendant is either guilty of -the crime charged or-is innocent of any offense. See, also, State v. Smith, 102 Iowa, 657, and State v. Van Tassel, 103 Iowa, 9. Whether the defendant may be tried, under this indictment) for mam slaughter, has not been argued, and is not decided.” .
We further held on that submission that, this error in the instruction was prejudicial to the defendant,. ffustices
We have again considered the case with the care which its importance demands, and are united in the opinion that the instruction was erroneous in the respect complained of, but we are equally divided as to whether the error was prejudicial to the defendant, and therefore, under the law, the giving- of said instruction stands affirmed, as being; without prejudice to the defendant. This renders it necessary that we now consider the other errors assigned and argued .on behalf of the defendant.
The fact that long prior to September 13, 1897, this defendant brought rat poison to the house, is so explained as to preclude the conclusion that he brought it for the purpose of being used to take the life of the deceased. If it should be said that the poison was feloniously administered, there is not sufficient evidence connecting the defendant therewith. The deceased was taken sick on Monday afternoon, and