Rayburn v. State , 69 Ark. 177 ( 1901 )

ON REHEARING.

Opinion delivered June 1, 1901.

Battle, J.

We are asked by the appellant to reconsider what we have said in a former opinion in this cause in reference to the following instruction: “If you find from the evidence beyond a reasonable doubt that defendant, in the perpetration of, or in the attempt to perpetrate, the robbery of A. T. Carpenter, shot and killed Carpenter, then defendant is guilty of murder in the first degree, and you will so find.”

■This instruction was given in a trial upon an indictment in the words and figures following: “The grand jury of Crawford count}’’, in the name and by the authority of the state of Arkansas, accuse Love Rayburn of the crime of murder in the first degree, committed as follows: The said Love Rayburn, on the 3d day of November, 1900, in the county of Crawford aforesaid, did unlawfully, wilfully, feloniously, and of his malice aforethought, and after premeditation and deliberation, kill and murder one A. T. Carpenter with a certain pistol, which he, the said Love Rayburn, then and there had and held in his hands, the said pistol being then and there loaded with gunpowder and leaden bullets, against the peace and dignity of the state of Arkansas.”

The statutes upon which this indictment was based are as follows: “Murder is the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied.” “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the penetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.” Sand. & H. Dig., §§ 1639, 1644.

According to these statutes two classes oE murder constitute murder in the first degree, to-wit: (1) All murder committed by any kind of willful, deliberate, malicious and premeditated killing; and (2) all murder which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny.

In Cannon v. State, 60 Ark. 564, this court held that it is essential to the validity of an indictment for the first class of murder in the first degree to use the words “willful,” “deliberate,” “malicious,” “premeditated,” or equivalent words, in charging the offense. The reason for the ruling is, these words are descriptive of the elements necessary to constitute that class of murder. For the same reason it is necessary to allege that the killing was done in the perpetration of, or in the attempt to perpetrate, one of the felonies named in the statutes quoted, in order to charge the second class of murder in the first degree. These two classes of murder in the first degree are separate and distinct. In the former a precedent intent to kill is necessary to constitute the offense, while in the latter it is not. While the former may be committed in the perpetration of, or attempt to perpetrate, the felonies named, an indictment for the same will not always include the latter; and when it does, it is only because the essentials necessary to constitute the former exist. The perpetration of or attempt to perpetrate, a felony necessary to constitute the second class is not equivalent to the premeditation, deliberation and intent necessary to constitute the first, except in effect. They raise the killing to the grade of that in the first class, but the allegations necessary to charge murder in the first degree in the first class are not equivalent to those necessary to charge the offense in the second. Hence an indictment which charges only the offense in the first class will not be sufficient to accuse the defendant of murder committed in the perpetration of, or in the attempt to perpetrate, one of the felonies named in the statute, unless it is committed with the intent to kill, and after premeditation and deliberation. In Support of this conclusion we cite Cannon v. State, 60 Ark. 564, and the cases and 'authorities cited in the same.

A defendant cannot be lawfully convicted of a crime with which he is not charged in the indictment against him. Some, courts have held that he can be convicted of murder committed in the perpetration of, or in the attempt to perpetrate, the felonies named in the statute, under a common-law indictment for murder. But tiny do so because they hold that the law dividing murder into two degrees introduced no change in the form of the indictment, created no new offense, and only reduced the punishment for one of the degrees. We disapproved of this view in Cannon v. State, 60 Ark. 564, and held that it did make a change in the form of the indictment.

It follows, the instruction should not have been given. Was it prejudicial? The evidence adduced by the state to sustain the indictment is not set out in the bill of exceptions. But it is stated in the bill of exceptions that the state “introduced several witnesses whose testimony tended to show, by facts and circumstances detailed by them, that the defendant was guilty, as charged in the indictment, of murder in the first degree.'5 But this is a statement of the court, and necessarily means that the evidence adduced tended to show that the defendant was guilty as charged in the indictment, under the instructions of the court, for they (instructions) indicate what the court considered sufficient to convict. In the absence of a contrary showing, the giving of an instruction indicates that the court was of the opinion that the evidence warranted the giving of it. We therefore think that the record shows that the instruction was prejudicial.

Reversed and remanded for a new trial.

Wood and Riddick, JJ., dissent.

Wood, J.

The error of the trial court is not shown. If the murder was deliberate, although in an attempt to commit robbery, the indictment was sufficient. There could not possibly be any prejudice if the proof all showed that the killing was deliberate. We must presume, until the contrary appears, that the charge of the court contained in the sixth instruction was based upon the evidence. As the indictment charges a deliberate killing, the presumption is the court would not have given instruction six had there been any proof whatever that the killing in an attempt to commit robbery was unintentional.