State v. LynchState v. Lynch
- Reporters:
- , ,
- Before:
- Strahan
Lead Opinion
— There was but one question presented upon the argument thаt we deem necessary to notice, and that is the sufficiency of the indictment. The appellant’s contention is thаt the indictment is fatally defective for the reason that it fаils to charge that the assault was made maliciously or of deliberate and premeditated malice, and this is the оnly question necessary to be decided. The indictment is founded on section 1740, Hill’s Code, which is as follows: “If any person shall аssault another with intent to kill, to rob or to commit a rape upon such other,” etc. The indictment charges that the assault was made upon the prosecutorwith the intent him, the sаid James Brown, to then and there kill and murder.” It may be safely cоnceded that the authorities are not uniform on this subject, аnd probably the weight of authority is with the appellant; but in State v. Doty, 5 Or. 491, a сonviction was upheld upon an indictment for this crime which certainly was not drawn with as much technical accuracy as the one now before the court. After disposing of some other questions presented in that case, the court said: “But we do not think it can *391be maintained that this indictment does not charge a crime within the meaning of subdivision 4, section 123, of the criminal code. The charge is in the language of the statute, and the legal signification of the term ‘ assault with intent to kill ’ imрlies the unlawful and felonious attempt to take the life of another.” This is a construction of this provision of the Code by this court, which has never been questioned and which we do nоt feel at liberty to disregard. Mr. Bishop, in his work on Directions and Forms, is in accord with this construction. In section 553 this distinguished author says: “In general, the verb ‘to kill’ in such a connection requires only thе intent to do what would constitute, if done, either murder or manslаughter.” And he adds, in section 555, “ The common and prudent method оf alleging this intent, not inquiring whether any other is permissible, is after its legаl effect in distinction from its outward form; as, ‘with intent to kill the said H,’ or ‘ with intеnt to murder the said H,’ or ‘ with intent to kill and murder the said H,’ or ‘with intent feloniоusly and of his malice aforethought to kill and murder the said H,’ or ‘ with intent feloniously and of his malice aforethought to commit murdеr in the first degree.’” And in effect the same doctrine is announced in People v. Congleton, 44 Cal. 92; People v. Swenson, 49 Cal. 388.
The intent necessary to constitute a crime under this sеction of the Code is stated with as much particularity as сould be reasonably desired. The assault was made with intent tо kill and murder, and the circumstances of the assault are stated with particularity. In addition to this, the court instructed the jury in effеct that they must find that the assault was made of deliberate and premeditated malice, or maliciously, before thеy could find the defendant guilty. Practically, the defendant had thе benefit of every principle of law for which he has сontended on this appeal.
Finding no error in the judgment appealed from, the same must be affirmed.
Concurrence Opinion
I concur in the оpinion of the chief justice in this case solely upon the ground of stare decisis. It seems to *392come within the doctrine of State v. Doty, 5 Or. 491, and while I think that case is not supported by the better authority, I do not feel at liberty to disturb it at this time. I am authorized to say that Justice Lord concurs in this view.