delivered tbe opinion of tbe court.
Tbe above-named defendant was convicted in tbe district court of Teton county of tbe crime of murder in tbe second degree, and from a judgment of conviction and an order denying bis motion for a new trial be bas appealed.
The information being so drawn, it becomes necessary to analyze the charging part thereof, in order to determine whether or not the statutory requirements have been complied with. Section 1832 of the Penal Code provides that an information must contain a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is in
In this case we undertake to say that a person of common understanding would know that the defendant was charged with murder in the first degree. The defendant is therefore presumed to have had that knowledge, and he was in no way prejudiced by the peculiar phraseology of the information. But, unless the pleader employs language embodying the charge intended to be made, he falls short of compliance with the statute; otherwise, the defendant would be charged by mere inference, which may not be done.
Recurring, then, to the information, and omitting certain parts thereof, we find that defendant is accused of the crime of murder as follows: “That the said Daniel McGowan, on the 18th day of March, 1906, * * * at the county of Tetón and state of Montana, in and upon one Charles Arnold, then and there being, did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought make an assault with a certain shotgun, which then and there was loaded with gunpowder and leaden bullets, and by him, the said Daniel McGowan, had and held in both his hands, * * * thereby and by thus striking the said Charles Arnold with the said leaden bullets inflicting on his back mortal wounds, of which said mortal wounds the said Charles Arnold died on the 18th day of March, 1906.” We have omitted these words: “He, the said Daniel McGowan, did then, and there feloniously, willfully, deliberately, premeditatedly, and with his malice aforethought, shoot off and discharge at, and upon, the said Charles Arnold.”
Is it permissible, under the rules of criminal pleading, to omit the foregoing? It will not be contended that the words last quoted mean anything standing alone, because there is no
The words that we have in mind to disregard involve simply an attempt to state the manner in which the shotgun was used in the assault. There is no allegation that the gun was discharged. In the case of Ray v. State, 108 Tenn. 282-295, 67 S. W. 553, 556, the court said: “It is insisted that the indictment is too vague as to the manner in which the deceased was killed, because, under the language used in the indictment, he might have been scared to death, which would not be murder in the first degree, or he may have been beaten to death. We think the language is broad enough to convey the idea of a battery. The indictment in this case charges that the prisoner, ‘with a certain dangerous weapon, to wit, a gun, which he in his hands then and there had and held, in and upon the body of one Gene Prentiss feloniously, willfully, deliberately, and premeditatedly, and with malice aforethought did make an assault upon the body of said Gene Prentiss, and did then and there unlawfully, * * ° by the means and in the manner aforesaid, kill and murder the said Gene Prentiss, against the peace and dignity of the state. ’ The charge that the defendant did then and there kill and murder him implies battery, and is sufficient. It is true that murder must be committed by an act applied to or affecting the person, either directly, as by inflicting a wound, or indirectly, as by exposing the person to a •deadly agency or influence, from which death ensues. (Com
In the case of Alexander v. State, 3 Heisk. (Tenn.) 475, it was held that an indictment for murder which did not specify the weapon used was good. The court said: “The assault recited is not the gravamen of the charge. That is only inducement to the real charge, which is that of killing and murdering; and, as the assault was followed by killing and murder as its consequence, it is not necessary to state the weapon with which the assault was made or the killing consummated. ’ ’ The information in the case at bar is much more specific in its allegations than was the indictment in the case last cited.
The supreme court of Georgia has decided that, in an indictment for murder by shooting with a pistol, it is not necessary to aver that the pistol was loaded with gunpowder and a leaden ball, or that the fatal wound was inflicted with a ball. (Peterson v. State, 47 Ga. 524.)
Murder, in this state, is the unlawful killing of a human being with malice aforethought. Allegation's sufficient for a common-law indictment for murder are sufficient for an information under the statute. (Territory v. Stears, 2 Mont. 324; State v. Lu Sing, 34 Mont. 31, 85 Pac. 521.)
We are of opinion that this information is sufficient to enable a person of common understanding to know what was intended to be charged therein, that that knowledge may be derived from the language employed, and that the defendant was
The next contention urged is that the court erred in admitting in evidence a certain shotgun shell, taken by the witness Connelly from the defendant’s gun after the defendant had delivered the gun to a deputy sheriff. After the witness had testified that the shells produced at the trial were the same shells taken from the gun, defendant’s counsel objected to the admission in evidence of one of them “as not'properly identified,” and they now argue that it was not shown that the shell was in the same condition as when taken from the gun. That point was not incorporated in his objection, and was only raised by counsel after the shell had been admitted in evidence, and the county attorney was about to pass it to the jury, and then only by the statement of counsel as follows: “We object, as the shell is not in the same condition, and may not be the same shell he has testified to.” We tMnk there is no merit in the contention, especially in view of the fact that the court expressly stated at the time that, if defendant’s counsel so desired, they might examine the witness on the subject, of which privilege they did not see fit to avail themselves. On cross-examination, the witness stated that the shell was not in the same condition as when he saw it the night of the shooting ; but no further questions were asked him concerning it, and the matter was allowed to rest there. We see no substance to the controversy, viewed from any standpoint, especially in the light of the fact that the defendant did not go upon the witness-stand, there was no denial of the killing, and the defense was insanity.
Defendant complains that he was not allowed to prove by the witnesses Stewart and Duffy that the deceased went by, and was known by, another name than Charles Arnold. Even though this ruling of the trial court may have been error, wMeh we do not decide, no harm was done, because the witness Cook testified that Arnold was also known by the name of Webber.
On the part of the defense there was testimony tending to show that the deceased, for some time prior to his death, had maintained illicit relations with the defendant’s wife, and had frequently been discovered in her company under such circumstances as to leave no doubt that they were together for the purpose of sexual intercourse. ' Certain witnesses also testified that the deceased had attempted to hire them to kill the defendant. All of these matters were communicated to the defendant prior to the homicide. It appeared, also, that for some time prior to the killing of Arnold, Mrs. McGowan and her three children lived at the town of Cut Bank, in Teton county, while the defendant lived on his ranch, some miles from the town, only coming to the house occupied by his wife every Saturday, when he would stay over Sunday, and sometimes two or three days longer. A witness, Mrs. Cook, testified for the defendant as to certain acts of the deceased and Mrs. McGowan while at the hotel of the witness at Cut Bank. On cross-examination she said: “I didn’t tell Mr. Cole (the county attorney) that I knew nothing about this case whatever, or about Arnold and Mrs. McGowan, except that they came there often
Robert S. Stewart, a deputy sheriff, testified for the state, and in the course of his testimony stated that he was not very friendly with Arnold. Thereupon defendant’s counsel asked him: “Is it not a fact that for some time previous to March 17th you had a warrant for his arrest which you did not serve 1 ’ ’ The court sustained an objection to the question, and the ruling is assigned as error. Assuming that it was proper to inquire as to the feeling of the witness for or against either the defendant or the deceased, still this question, in itself, did not show to the trial court that the answer would bear upon that subject, and the court properly ruled thereon. Had the defendant placed the same construction upon the inquiry that he now does, he should either have amended his question by incorporating therein the presumed reason for withholding the service of the warrant, or have made an offer of proof covering the point in such a way that the court might intelligently rule thereon.
The state, also in rebuttal, proved, identified, and offered in evidence a paper writing, reading as follows:
“Cut Bank, Mont.
“Dan McGowan, of Cut Bank, Montana, a rancher,' and Elisa McGowan, his wife, of Cut Bank, Montana, have agreed together, at Cut Bank, Mont., on this 12th day of December, 1905, and do hereby promise and agree to' and with each other, as follows: Dan McGowan, in consideration of the promise and mutual agreement made by Elisa McGowan, does hereby grant,*432 bargain, and sell all of his interest in the following described personal property, to wit: [Here follows description of certain cattle and horses, and also one wagon and set of double harness.] And Elisa McGowan, for and in’ consideration of the above agreement, does hereby sell, assign, and transfer all of her interest in the following described personal property, to wit: [Here follows description of certain other cattle and horses and one wagon and team harness.] It being further agreed by and between the parties above mentioned that Elisa McGowan is to have the use of their house in Cut Bank, and that Dan McGowan is and agrees to allow Elisa McGowan 10 dollars for the support of the children she has in her care each month for a period of five months, and after that period a further agreement is to be made by and between Dan McGowan and Elisa McGowan as to the dividing of the balance of their joint personal property and improvements.”
The writing bears the following certificate of acknowledgment, signed by a notary public: “On this 12th day of December, 1905, before me, the undersigned, a notary public in and for the county of Teton, personally appeared Dan McGowan and Elisa McGowan and acknowledged to me that they did agree to the foregoing division of the personal property as set forth in the foregoing agreement and that is their own free and voluntary act”
In overruling defendant’s objection to this paper, the court said: “I think I will let it go to the jury. It shows that they were living under this contract of separation. That might throw some light upon the question to the jury whether or not the defendant was sane or insane. I think, taken with all the other evidence, it is perhaps competent.” It is now contended that the remark of the court, in characterizing the document as a contract of separation, was prejudicial to the defendant. The paper was also objected to as incompetent rebuttal evidence; but we see no force in the objection. The issue being tried was whether the defendant had been rendered insane by the assault of the deceased upon the sanctity of his domestic relations.
Defendant complains of a part of instruction No. 10. It reads thus: “If you find from the evidence beyond a reasonable doubt that the defendant murdered Charles Arnold, and you do not find him guilty of murder in the first degree, you should find him guilty of murder in the second degree. Murder in the second degree is the unlawful killing of a human being with malice aforethought, either express or implied, where the killing is not done deliberately, or with some degree of coolness, or in any one of the ways specified in the definition of murder in the first degree.” It is said that the jury should have been told in the same instruction that the word “murder” must be construed to mean the offense defined in the Code, as set forth in other instructions. We think it would be a sad commentary upon our jury system and upon the intelligence of the good citizens of Teton county if we should hold that there was any possibility that this jury did not understand that the defendant was being tried for the crime set forth in the information and as defined by the court, and we, therefore, refuse to so hold.
Instruction No. 24 is objected to. It reads as follows: “You are instructed that in order to be criminally responsible, a person must have intelligence and capacity to have criminal intent and purpose, and if his mental powers are so deficient that he has no will, or no conscience, or no controlling mental power, or if, from the overwhelming violence of mental disease, his intellectual power is for the time obliterated, so that he has not the poAver or volition to choose to do right and refrain from
Defendant complains of instruction No. 25, which reads as follows: “You are instructed that if, from all the evidence in' the case, you believe .beyond a reasonable doubt that the defendant committed the crime of which he is accused in manner and form as charged in the information, and that at the time of the commission of such crime the defendant knew that it was wrong to commit such crime, and was mentally capable of choosing either to do or not to do the act or acts constituting such crime, and of governing his conduct in accordance with such choice, then it is your duty, under the law, to find him guilty, even though you should believe from the evidence that at the time of the commission of the crime he was not entirely and perfectly sane.” It is said that instead of the word “crime,” the court should have employed some such word as “homicide.” The defendant’s counsel maintain that the use of the word “crime” conveyed to the jury the notion that the court was of opinion that the defendant was guilty of the crime charged against him. While cases may, and sometimes do, arise in which the use of the word “crime” might possibly be con
Tbe last assignment of error set forth in tbe brief of - defendant’s counsel relates to tbe failure of tbe court of its own motion to submit to tbe jury tbe question whether, tbe defendant was guilty of manslaughter. No request was made for such an instruction. So far as tbe evidence shows, there bad been no meeting between defendant- and deceased for several days prior to tbe shooting. Arnold was shot in tbe back, through tbe glass of a window of a hotel, while be was sitting quietly at tbe dining-table waiting for food to be served to him. Soon after tbe occurrence tbe defendant admitted to several witnesses tbat be did tbe shooting. One witness said to him tbat it was a dirty trick to shoot a man in tbe back, to wbieb remark defendant replied tbat be could not take a chance with tbis man; tbat be was afraid to. He also told tbe deputy sheriff tbat be “got tbe son of a gun”; and to tbe witness Woods be said, “I bave killed him, and I am not sorry for it.” Tbe entire defense was devoted to tbe question of defendant’s mental condition. Under these circumstances, we do not tbink tbe court would bave been justified in instructing tbe jury with refer
The record in this case shows that the defendant had a fair and impartial trial. The judgment and order appealed from are therefore affirmed.
Affirmed.