29 La. Ann. 601 | La. | 1877
The opinion of the court was delivered by
The defendant was indicted, tried, found guilty, and sentenced to three years imprisonment at hard labor in the penitentiary. After an ineffectual motion in arrest of judgment, he has appealed. The charge, as stated in the indictment, is that he did, with force and arms, “ shoot one George Washington loith a dangerous weapon, namely, a shotgun, with intent to commit murder, and to murder aforesaid George Washington, contrary to the form of the statute,” etc. The ground set
It is singular that the court altogether overlook, in the State vs. Phelps and Brown, 24 An. 494, the important fact that section 1048 of the Revised Statutes of 1870 provides that "it shall be sufficient in an indictment for murder to charge that the defendant ‘ did feloniously, willfully, and of Ms malice aforethought, kill and murder the deceased,” and in every indictment for manslaughter to charge that the defendant “ did feloniously kill and slay the deceased.” These provisions are precisely those of the act of 1855, and clearly indicate that it was not the legislative intention to dispense with them, which, as was well said by Judge Ilsley, the organ of the court in State vs. Cook, are precisely the important facts charged in the indictment according to the English form (quoting Archbold’s Crim. Plead., 314).
It is hardly necessary to add that by the act of 1805, of 1855, and the Revised Statutes of 1870, it was provided that all crimes, offenses, and misdemeanors shall be taken, intended, and construed according to the common law, and that the forms of indictments (divested of unnecessary prolixity) the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, offenses, and misdemeanors (‘ changing what ought to be changed ’) shall be according to the common law, unless otherwise provided.”
The cases cited in this opinion, and those referred to in them, give judicial interpretation to the words “ unnecessary prolixity ” and “ changing what ought to be changed ” under the statute. The essential averments of a good indictment at common law are not classed under either head. The case of the State vs. Toney Forney, 24 An. 191, was an indictment “ for shootiDg with intent to kill and murder while lying in wait,” and charged the act to have been done “ willfully, feloniously, and maliciously.” The extent of the ruling of the court was that the offense was sufficiently charged in that language under the statute, without the use of the.words, “with malice aforethought.”. None of the words “willfully, feloniously, or maliciously,” found in that indictment, appear in the indictment in the present case, which does not, therefore, come within the authority of that case, even admitting it to be consistent with the former rulings of this court. Whether, therefore, it was essential to use in that
It is therefore ordered, adjudged, and decreed that the judgment be arrested, that the verdict and sentence appealed from be annulled, avoided, and reversed, the indictment quashed, and that the defendant remain in custody to await the finding o.f a new bill of indictment by another grand jury of the parish of East Feliciana,