100 P. 229 | Mont. | 1909
delivered the opinion of the court.
The information in this case charged the defendant and one William Warneeke with murder. Defendant, having been granted a separate trial, was convicted of manslaughter, and has appealed from the judgment and the order denying him a new trial.
The body of the information is as follows: “William Warneeke and Sofus Nielson are. accused by James E. Murray, the duly elected, qualified and acting county attorney in and for
It is said that the terms “deliberately” and “premeditated” characterize the malice, and not the killing, and are therefore abortive as elements of the definition of murder in the first degree as laid doivn in the statute. The objection is without substance. “Murder is the unlawful killing of a human being with malice aforethought.” (Revised Codes, see. 8290.) It is charged that the killing was with malice aforethought, and however else the condition of mind indicated by this expression is regarded as modified by the addition of the words referred to, the scope and meaning of the expression is not in any way restricted. It was pointed out by Mr. Chief Justice Wade, in the early case of Territory v. Stears, 2 Mont. 324, that an indictment was sufficient at common law which charged that the killing was done feloniously, willfully, and with malice aforethought, and that the elements of premeditation and deliberation were matters of proof, from which the jury should draw their own inference in fixing the degree. This form of indictment or information has been considered by this court since in several cases, and has always been held sufficient. (Territory v. McAndrews, 3 Mont. 158; State v. Metcalf, 17 Mont. 417, 43 Pac. 182; State v. Hliboka, 31 Mont. 455, 78 Pac. 965; State v. Lu Sing, 34 Mont. 31, 85 Pac. 521; State v. Hayes, ante, p. 219, 99 Pac. 434.) It is difficult, if not impossible, to distinguish between the expressions “deliberate and premeditated killing
The further objection is made that the information is insufficient in that it does not charge the means by which the killing was done. This point was decided adversely to the appellant in the case of State v. Hayes, supra, and is too well settled in this jurisdiction to require discussion. (State v. McGowan, 36 Mont. 422, 93 Pac. 552; see, also, People v. Hyndman, 99 Cal. 1, 33 Pac. 782; People v. Lee Look, 137 Cal. 590, 70 Pac. 660; People v. Ung Ting Bow, 142 Cal. 341, 75 Pac. 899; People v. Suesser, 142 Cal. 354, 75 Pac. 1093.)
It is plausibly contended that the court erred in submitting the following instruction: “23. You must not be misled by evidence of aggravated trespasses about the ice pond, nor mistake the purpose of such evidence. None, nor all of said trespasses, nor injury or damage caused thereby, nor aggravation or annoyance due to them, nor anger or resentment justly aroused by them, justifies or excuses the killing of Chris. Stanisich by defendant. And, too, note that Chris. Stanisich was guilty of none •of such trespasses, save the trifling one of shooting ducks the day he was killed. There are certain trespasses against occupied dwelling-houses, and certain felonies that may be resisted and prevented at the time, to the extent of taking life, but not as punishment, after the trespasses are completed. But where, as
In order to understand the purport of this assignment, it will be necessary to make a brief statement of the facts leading up to the homicide. The Butte Ice Company owns an icehouse, with ice ponds, situate about three miles south of the city of Butte, in Silver Bow county. William Warneeke and the defendant were employed by the company to harvest and store ice during the winter, and get it out for distribution during the summer. Warneeke had charge as foreman or superintendent, and his wife kept the boarding-house for the men employed. For some time prior to the morning on which the homicide occurred, there had been a good deal of reckless and careless shooting about the ponds and buildings by persons going out from the city to hunt ducks and other small game sometimes found about the ponds and in the adjoining fields. In some instances shot and bullets entered the boarding-house and the other buildings. In one or two instances some of these trespassers had shot at members of Warneeke’s family. A horse of his had been killed by a bullet which had entered the stable. These reckless acts had caused so much anxiety to Warneeke’s
Counsel make the point that the instruction prejudiced the defendant by withdrawing from the jury consideration of any personal trespass upon him by the deceased, which the evidence tended to establish. Inasmuch as the defendant relied exclusively upon the defense that the homicide was excusable, because accidental, the restriction made by the court of the purpose for which the evidence was admitted could not have prejudiced the defendant as alleged. It is true, consideration of the evidence for the purpose of justification or palliation is eliminated entirely. Yet defendant cannot claim prejudice because the court did not recognize a defense upon which he himself did not rely, and instruct the jury with reference to it.
The same may be said of the contention that the instruction is erroneous in that it comments upon the weight of the evidence. Whether it lays down the law correctly as to the extent to which one may go in resisting a trespass upon his property it is not necessary to consider or decide. But it was entirely proper for the court to define the purpose for which the evidence had been offered and admitted, and to limit it directly to this purpose. In doing this it became necessary to refer to it; but there is nowhere expressed, even by implication, an opinion as to the weight which the jury should give to it.
Affirmed.