20 Or. 389 | Or. | 1891
Lead Opinion
— There was but one question presented upon the argument that we deem necessary to notice, and that is the sufficiency of the indictment. The appellant’s contention is that the indictment is fatally defective for the reason that it fails to charge that the assault was made maliciously or of deliberate and premeditated malice, and this is the only question necessary to be decided. The indictment is founded on section 1740, Hill’s Code, which is as follows: “If any person shall assault 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 said James Brown, to then and there kill and murder.” It may be safely conceded that the authorities are not uniform on this subject, and probably the weight of authority is with the appellant; but in State v. Doty, 5 Or. 491, a conviction 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
The intent necessary to constitute a crime under this section of the Code is stated with as much particularity as could be reasonably desired. The assault was made with intent to kill and murder, and the circumstances of the assault are stated with particularity. In addition to this, the court instructed the jury in effect that they must find that the assault was made of deliberate and premeditated malice, or maliciously, before they could find the defendant guilty. Practically, the defendant had the benefit of every principle of law for which he has contended on this appeal.
Finding no error in the judgment appealed from, the same must be affirmed.
Concurrence Opinion
I concur in the opinion of the chief justice in this case solely upon the ground of stare decisis. It seems to