| Or. | Aug 3, 1909
delivered the opinion of the court.
The defendant was indicted, tried, and convicted of murder in the first degree for the killing of Mary Smrekar on the 11th day of July, 1908, by shooting her with a pistol, and from the judgment thereon he has appealed.
“The law conclusively presumes malice from the deliberate and unlawful use of a deadly weapon causing death within a year.”
The defendant excepted to the instruction and requested the court also to add to and give as a part thereof the following:
“But this conclusive presumption, standing alone, is insufficient to sustain a verdict of murder in the first degree.”
The court refused to instruct as requested, but gave this:
“The law conclusively presumes malice from the deliberate and unlawful use of a deadly weapon causing death within a year; but it does not conclusively presume that the killing under such circumstances is murder in the first degree, or in any degree. (To counsel) I think this covers your suggestion. (To the jury) The law does not presume the degree of the offense from the mere fact of the deliberate unlawful use of a weapon.”
And to this instruction defendant also excepted. The giving of these instructions, and the exceptions taken, comprehend the entire matter set forth in the bill of exceptions; but there is attached as an exhibit so much of the instructions of the court as pertained to defining
“(1) An intent to murder, from the deliberate use of a deadly weapon, causing death within a year; (2) a malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another.”
In State v. Carver, 22 Or. 602" court="Or." date_filed="1892-06-21" href="https://app.midpage.ai/document/state-v-carver-6896133?utm_source=webapp" opinion_id="6896133">22 Or. 602 (30 Pac. 315), where the defendant was charged with the crime of murder in the first degree, this court considered the effect of the first of these presumptions in connection with Section 1754, B. & C. Comp., which provides that:
“There shall be some other evidence of malice than the mere proof of the killing to constitute murder in the first degree, unless the killing was effected in the commission or attempt to commit a felony; and deliberation and premeditation, when necessary to constitute murder in the first degree, shall be evidenced by poisoning, lying in wait, or some other proof that the design was formed*364 and matured in cool blood, and not hastily upon the occasion.”
It was there held that the presumption of an intent to murder declared to be conclusive by the statute applies only to murder in the second degree, and has no application to murder in the first degree; but to constitute proof of this crime there must be some affirmative evidence of deliberation and premeditation. And in State v. Gibson, 43 Or. 184" court="Or." date_filed="1903-08-03" href="https://app.midpage.ai/document/state-v-gibson-6899297?utm_source=webapp" opinion_id="6899297">43 Or. 184 (73 Pac. 333), it was held that the provisions of Section 1754, B. & C. Comp., are a limitation upon the presumption declared by the statute, and confine its operation.to murder in the second degree; but it was also held in that case that, even as to that degree of crime, the presumption there declared is not always conclusive of the intent, but is so only when nothing else appears in evidence either to justify or excuse the act, that it was intended to apply only where the mere fact of the killing with a deadly weapon deliberately used is shown, without else to modify or explain the act, and, when there is evidence tending to rebut the presumption, it becomes a matter for the jury to determine. The instruction, of which complaint is made in the case at bar, is not in the language of the statute, nor is it by any means so comprehensive. “An intent to murder” is the presumption raised by the statute; but that of the instruction given is only “malice,” not premeditated malice necessary to murder in the first degree, but malice present at the commission of the act, an element of murder in the second degree. By the statute the presumption of “intent to murder” is raised from the deliberate use of a deadly weapon causing death within a year, while by the instruction given the presumption of “malice” was said to follow from proof of the deliberate and unlawful use of a deadly weapon, etc. By the addition of the word “unlawful,” the court materially relaxed the severity of the statute upon the defendant, and safeguarded his rights, because the pre
Moreover, to further guard the rights of the defendant, and in lieu of the suggestion of his counsel, the court modified the instruction as first given, by adding to it that the law “does not conclusively presume that the killing under such circumstances is murder in the first degree, or in any degree.” This of itself was sufficient to eliminate any possible error. State v. Bartmess, 33 Or. 110" court="Or." date_filed="1898-08-13" href="https://app.midpage.ai/document/state-v-bartmess-6897684?utm_source=webapp" opinion_id="6897684">33 Or. 110, 130 (54 Pac. 167). On the other hand, when giving. the elements necessary to establish murder in the first degree, the court was careful that there should be no misapprehension in the minds of the jury in relying upon any presumption of malice when considering that degree of crime, for -they were instructed that the law also requires, in order to constitute murder in the first degree, that there shall be some other evidence than the mere fact of the killing, to wit, that the design had been formed and matured in cool blood, and not hastily on the occasion; and, unless it was so formed and matured in cool blood, there could be no murder in the first degree. The instruction complained of, not only by its terms, but when taken in connection with the remainder of the charge, was clearly limited to degrees of crime less than murder in the first degree.
It is urged, however, that, as the defense of insanity was interposed, there must have been some evidence to modify and explain the act, and therefore to rebut the presumption of malice, and for that reason, under the rule announced in State v. Gibson, 43 Or. 184" court="Or." date_filed="1903-08-03" href="https://app.midpage.ai/document/state-v-gibson-6899297?utm_source=webapp" opinion_id="6899297">43 Or. 184 (73 Pac. 333), the existence of malice was a question for the jury to weigh and determine, and not one of law for the court, and that the giving of the instruction was inappropriate and erroneous. The portion of the instructions appended ’ to the bill of exceptions as Exhibit A contains some propositions of law applicable to such a
It necessarily follows from these considerations that the judgment must be affirmed, and it is so ordered.
Affirmed.