State v. McGaffin , 36 Kan. 315 ( 1887 )

The opinion of the court was delivered by

Johnston, J.:

1. information— sufficiency— general rule. The first objection taken to the conviction and sentence by the appellant is, that the information is insufficient to charge murder in the first degree, the offense of which he was found and adjudged guilty. The alleged omission or defect is, that it does not contain either the words “ malice aforethought,” or “ with intent to kill.” The charging part of the count in the information upon which the conviction rests is, that “Thomas McGaffin did then and there unlawfully, feloniously, willfully, deliberately and premeditatedly kill and murder one Harrison Sherman, then and there beiug, by shooting him,” etc. Malice aforethought, or a wicked intention to kill, previously and deliberately formed, is an essential ingredient of the offense, and this element must be plainly charged in the information, or indictment. It is not important or necessary, however, that these identical words, or any particular form of words, should be used. The equivalent of these, or any words clearly expressing this element, is all that is required. The particularity of the common-law system or rules of pleading does not prevail here. As a general rule, it is sufficient if the offense is charged in the language of the statute, aud even the statutory words de- , fining the oftense need not be strictly pursued, but others conveying the same meaning may be used. (Crim. Code, § 108.) The language of the statute employed in defining the offense is, “ every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, . . . shall be deemed murder iu.the first degree.” (Comp. Laws of 1879, ch. 31, § 6.) The information uses not only the statutory terms, but the Avords “unlawfully” and “feloniously” are added. The charge which it contains is brief, but Ave think it states in plain and concise language every element of the crime of Avhich the appellant was convicted. It avers that the killing was done Avith premeditation, Avhich means that there Avas design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill Sherman. (Craft v. The State, 3 Kas. 483; Ernest v. The State, 20 Fla. 383.) It is also charged that the accused deliberately killed Sherman, Avhich means that the act was determined upon after reflection, and that “ the consequences, chances and means were Aveighed, carefully considered and estimated” by him. (Craft v. The State, supra.) It is further averred that the accused willfully killed the deceased, and he is thus charged Avith having killed the deceased purposely. The charge that the killing was done unlawfully and feloniously excludes the idea advanced by the appellant, that it could have been excusable or justifiable. The accused is therefore charged with having formed a Avrongful and unlawful purpose to kill the deceased, and that in pursuance of this purpose and plan, determined upon after reflection, and after Aveighing the consequences, the homicide Avas committed by him.

„ , , 2. Murder; inforhigpart; sum?’ 01011' The terms employed by. the county attorney in charging the offense are the full equivalent of a statement that the killing was J- . . ° done intentionally and with malice aforethought, and therefore the omission of those identical terms from the charge does not render it subject to the objection that has been urged. (The State v. Fooks, 29 Kas. 425; The State v. Bridges, 29 id. 138; The State v. White, 14 id. 538.)

3. witness-impeachment. Another objection made by the appellant is based upon the rulings of the court in excluding testimony. A witness for the state named Simeon Reeves gave his version of what occurred between the accused and the deceased at the time of the homicide, and his testimony tended to show that the appellant was the aggressor, and that he shot and killed the deceased without excuse or justification. With a view of showing that his testimony was unworthy of credit, he v*as asked on cross-examination if he did not take part in a conversation on the day following the homicide wherein he gave a wholly different account of the transaction. It seems that on the next day after the homicide the witness went to Burlingame with one Smith, and after their arrival there they met another person, named Carr. The inquiry on the cross-examination of the witness was, if at that time, when all three were present, the witness did not make a statement regarding the homicide in response to a question from Carr, when Smith interrupted with the remark: “ Oh, hell! that is not the -way you told me about it,” or, “ That is not the way you told it to me,” or words to that effect. This was followed by another inquiry of the witness as follows: “And then did not Smith proceed, and say in substance that Reeves told him that he and Sherman were sitting in the shanty when the witness saw McGaffln coming, and Sherman said, CI intend to take my whip and drive that old scoundrel off the farm/ and went out and got on his horse — went out and struck at McGaffln with his whip, and McGaffln shot at him, and he struck the second time, and McGaffln shot the second time, and he struck the third time, and then rode to the house?” The witness ■was then asked if immediately following that statement he did not say, “I guess that is the way of it.” The inquiries .were refused, and the testimony was excluded by the court; and this ruling is assigned for error. These questions should have been allowed and answered. The purpose of the ciefenge wag £0 impeach the witness by showing that he had made statements out of court and soon after the occurrence contradictory to those made by him on the witness stand. This is a proper and effective mode of impeachment, and under the circumstances of this case the denial of the right is material error. The time, place, and the attendant circumstances, as well as the persons to whom the contradictory statements were made, were called to the attention of the witness, as the law requires. It is claimed in behalf of the state that as the statements were a portion of a conversation, and were partly made by Smith, they do not afford a sufficient foundation for the introduction of testimony contradicting Reeves. In other words, that the witness could not be impeached by testimony of what some one else had said. It should be remembered, however, that the defendant proposed to show that the witness not only assented to what Smith stated that the witness had previously told him, but he adopted and made the language of Smith’ his own by saying, “I guess that is the way of it.” The witness could have admitted or denied the statements said to have been made and adopted by him, or he was at liberty to explain any inconsistency between the statements imputed to him and those given in testimony, just the same as though there had been a single and complete statement independent of any conversation. The testimony excluded was relevant to the issue and very important in the case. Reeves was the only person who witnessed the difficulty between the accused and the deceased, and the conviction for murder in the first degree rests almost entirely upon his testimony. The former contradictory version of the difficulty proposed to be shown harmonized with the theory and testimony of the defense. It tended to show that the accused was dangerously assailed by the deceased, and that, the shooting was done by the appellant in self-defense. At least it went strongly toward reducing the homicide to a lower degree than that with which the appellant has been charged, and of which he has been convicted. If the witness made the statements claimed by the defense, and which, are radically different from his testimony, it may well be argued that he is unworthy of belief; and if his testimony were successfully impeached, or eliminated from the record, the conviction would certainly fail for lack of support; and therefore the importance of the testimony and the materiality of the error in its exclusion are readily seen. It may be that the testimony excluded would not have changed the result that was reached by the jury; but this we cannot know.

4' Suaingtestimony. It is enough that it was relevant, competent, and material, and being so it should have gone to the jury to aid them in determining whether the defendant had committed the offense charged, or any degree thereof.

There is no other question in the case which we need to notice; but the view which we have taken renders a new trial necessary, and for this purpose the judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.