26 Wis. 415 | Wis. | 1870
The defendant having been convicted of murder in the first degree, the circuit court certified to this court several questions, arising upon objections taken by the prisoner’s counsel to the indictment. The killing was accomplished by administering poison. And counsel objects that the poison is not charged to have been administered either with “malice aforethought,” so as to be good at common law, nor with a premeditated design to effect death, so as to be sufficient under the statute. And, in connection with this objection, he insisted strenuously, that it would not be sufficient to have used the words of the statute merely, but that the killing must still be charged to have been done “with malice aforethought,” and that the words of the statute cannot supply their place. With respect to the charging part of the indictment, it would not be necessary to determine the latter question, because we think the offense is there properly stated so as to make the indictment good either at common law or under the statute. It charges that the defendant, “ contriving and intending to kill and murder one Elizabeth Duvall, with malice aforethought, and from premeditated design to effect the death of her the said Elizabeth Duvall, then and there a large quantity of a certain deadly poison called strychnine, knowingly, willfully and feloniously did give and administer unto the said Elizabeth Duvall,” etc.
It is suggested that although both the established common law phrase, and the statutory language descriptive of that degree of malice necessary to constitute murder in the first degree, are here used, yet
But in the conclusion of the indictment, the words “ with malice aforethought ” are not used, although the words of the statute are. It is as follows: “ And so the jurors aforesaid, upon their oaths aforesaid, do say that the said William P. Duvall, her the said Elizabeth Duvall, in manner and form aforesaid, feloniously, willfully, and from premeditated design to effect the death of her the said Elizabeth Duvall, did poison, kill and murder,” etc. To this conclusion the same objection is repeated. Without stopping to consider whether, where the offense has once been properly charged in the body of the indictment to have been done “ with malice aforethought,” the omission to repeat those words in the conclusion could in any case be fatal; or whether, if they were essential in the conclusion also, the words “ in manner and form aforesaid ” should not be held to import them, and sufficiently aver, for the purposes of a conclusion, that the killing was done with the malice aforethought with which it had been previously charged — I think the objection untenable for the reason that those words are not essential either in the body or the conclusion of the indictment.
The argument that they, are essential seems to be based upon the mistaken assumption that, by reason
The propriety of the decision itself is not beyond question. The words “ with malice aforethought ” being as applicable, under the New York statutes and
But whether that case was correctly decided or not, and whether an indictment under our statute, in the common law form merely, would be sufficient, it is not necessary to consider. Whether it would or not, the words of the statute are sufficient under the statute. The remark of the court in O’Kelly v. The Territory, 1 Oregon, 51, are peculiarly applicable. “ The words of the statute are transferred to the indictment; and if they describe murder in the one place, they of course describe it in the other.” The case of the State v. Fee, 19 Wis. 562, relied on by the prisoner’s counsel, is not applicable. The question there was as to the sufficiency of an indictment under a statute punishing an assault with intent to murder. And the court held that the allegation of “ malice aforethought ”, must be made. It might be said that by the use of the word “ murder ” alone, that statute intended to refer to the common law definition of murder, and require the essential fact of malice to be stated. The real point of the inquiry was, whether that fact should be alleged at all. And in holding that it must be, it was natural enough to refer to and use the common law form of
It should be certified to the circuit cout, that in the opinion of this court, the indictment is sufficient, and it should proceed to sentence.
By the Court. — Ordered that it be so certified.