33 La. Ann. 921 | La. | 1881
The opinion of ’the Court was delivered by
Appellant complains that the information under which he was tried and convicted of shooting with intent to commit murder, is defective, in not containing the words “ with malice aforethought ” or “ maliciously,” in the description of the manner of shooting.
The information charges that appellant and two others “ did wilfully and feloniously shoot and wound with a dangerous weapon, to wit, a pistol, with the intent then and there the said Alomo Lacroix feloniously, wilfully and of their malice aforethought to kill and murder,” etc.
The question is whether the crime charged is sufficiently described to justify the conviction and sentence.
Under the statute, the offence charged is composed of two ingredients ; one, the shooting, and'the other, the intent to commit murder; and the gist or gravamen of the crime lies in the intention with which the act. of shooting is done.
The intention to commit murder, does not follow or qualify every
It, therefore, follows that, if the intent with which the fatal blow is-inflicted, is properly and sufficiently described in the indictment or information, the end of the law is satisfied.
As suggested by appellant’s counsel, the crucial test of the sufficiency of such an indictment, is whether, in case of death of the party shot and wounded, the description of the crime, as contained in this instrument, would be sufficient to warrant or justify a verdict for murder. We have-no hesitation to assert that the description complained of would be sufficient. And in this opinion we are amply borne out both by reason and by authority.
Under this test, the indictment would read in substance, as follows:: “ did wilfully and feloniously shoot ' * * * with a dangerous-weapon, to wit, a pistol, * * and did then and there the said A. L. feloniously, wilfully and of their malice aforethought kill and murder.”'
The crime of murder is, beyond a doubt, sufficiently described in such language, and the indictment would be sufficient even if the words “ wilfully ” and “ feloniously ” had been omitted before the word “ shoot.”'
An indictment strikingly similar to this information, in which the-assault was not described by the words wilfully or with “ malice aforethought,” was held sufficient by the Supreme Court of Massachusetts in the case of Commonwealth vs. Chapman, 11 Cushing, 422; Bishop on Statutory Crimes, § 506; same on Criminal Procedure, § 547.
Our own Supreme Court, in the case of State vs. Robertson,‘30 An, 342, held that “ it shall be sufficient in any indictment for murder to-charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased,” quoting the very language of the statute, R. S. Sec. 1048, prescribing the requisites of an indictment for murder.
In the case quoted, the averment was that “ A. R. did cut, st'ab and wound the said O. R.,” and the indictment further charges “ that the said A. R. did the said O. R. then and there wilfully, feloniously and of his malice aforethought kill and murder.”
In the case of State vs. Thomas, 29 An. 601, mainly relied upon as authority by appellant’s counsel, which was on an identical charge with the case at bar, neither the shooting nor the intent to commit murder, were described as “ malicious,” and hence, the decision quashing the indictment in that case is no authority in this.
There is no error in the judgment appealed from, and it is, therefore, affirmed.