22 Or. 602 | Or. | 1892
The defendant was indicted, tried, and convicted of the crime of murder in the first degree, for the killing of Francis La Bord on the twenty-seventh day of May, 1891, in Union county, by shooting him with a pistol. From this judgment he appeals, assigning as error the giving and refusal of certain instructions by the trial court. After instructing the jurv that if the killing was done pur
The defendant was indicted and on trial for murder in the first degree, and when the court used the word “guilty” in the instruction just quoted, the jury had a right to understand, and no doubt did understand, that if the killing was done purposely and maliciously, by the deliberate use of a deadly weapon, the defendant was guilty, and should be convicted of the crime charged in the indictment. In this view, the instruction is manifestly erroneous. It authorized and directed the conviction of the defendant of murder in the first degree upon proof only of murder in the second degree. The instruction entirely omits all the necessary requisites and distinguishing features of murder in the first degree, and substitutes therefor the presumption arising from the deliberate use of a deadly weapon. It correctly defines murder in the second degree only, and yet the jury must have understood that if the case as stated in the instructions was shown by the evidence, they must find the defendant guilty as charged.
In order to constitute murder in the first degree, the killing must have been done of deliberate and premeditated malice. Under the express provisions of our statute, there must be some other evidence of malice than the mere proof of the killing, unless the killing was effected in the attempt to commit a felony, and the deliberation and premeditation must be evidenced by poisoning, lying in wait,' or some other proof that the design was formed and matured in cool blood, and not hastily upon the occasion. (Hill’s
The presumption of an intent to murder, declared to be conclusive by our statute, from the deliberate use of a deadly weapon (section 775) has, therefore, no application to murder in the first degree, and goes no farther; but in order to constitute this crime, there must be some affirmative proof of deliberation and premeditation. When, therefore, the court substituted for this proof the statutory presumption arising from the deliberate use of a deadly weapon, it was prejudicial error, for which a new trial must be ordered.
There is no merit in the other assignments of error, and the definitions of deliberation and premeditation, as given by the court, are substantially the same as given by this court in State v. Ah Lee, 8 Or. 214. The law of self-defense was clearly and properly stated. The remarks of the district attorney, in his closing argument to the jury, to the effect that he had been advised that one of the jurors had formed and expressed an opinion concerning the merits of the case before being called and accepted as a juror, were certainly, although not so intended, calculated to injuriously
The judgment is reversed and a new trial ordered.