Territory of Montana v. Godas , 8 Mont. 347 ( 1889 )

Bach, J.

The appeal in this case is based upon one ground only, which, briefly stated, is that the tenth count of the indictment does not state facts sufficient to constitute the crime, of murder in the first degree, because it does not allege that the assault was made with the wilful, deliberate, and premeditated purpose and intent to kill. If this case was one of first impression in this court, and if that intent was not alleged, we might reach a conclusion different from our present decision. There seems to be much force in the position taken by the counsel for defendant, which is about as follows: Our statute defines murder in the first degree, and changes the common-law definition of that kind of murder, the penalty of which is death; therefore, murder in the first degree being a statutory crime, and an indictment charging only what was required at common law, will not sustain a verdict of guilty of murder in the first degree. It is insisted by the appellant that an assault may be made wilfully, deliberately, premeditately, and with deliberately premeditated malice aforethought, and yet may not have been made with any intent to kill; and that in such case the crime of murder in the first degree would not have been committed even though death had ensued as the result of such an assault. We can see much force in the argument of counsel that the intent to kill is a fact which is a necessary ingredient of the crime, and that for that reason it ought to be stated in the indictment. We cannot refrain from expressing our surprise that prosecuting attorneys do not insert a clause, the absence of which from indictments has been the ground of appeal to this court in so many cases.

In the case of the Territory v. Stears, 2 Mont. 325, the Supreme Court of this Territory held that it was not necessary to charge the intent to .kill in an indictment for murder in the first degree. This decision was twice affirmed; once in Territory v. McAndrews, 3 Mont. 158; again, in Territory v. Young, 5 Mont. 243. And similar indictments have been upheld in other courts of high repute. In this Territory, since ¡the decision in the Young case, the soundness of the doctrine has never been questioned until now, although many cases of the same grave nature have been before us upon -similar indictments. The decision now has the force of a well-established precedent; and it would be vain for us to say that an indictment of the same character does not in this jurisdiction notify the accused of the nature of the crime,charged against him.

The tenth count of this indictment, however, contains allegations which were not included in the indictment of the ease of the Territory against Stears. -In.the latter,case it will.be observed that the words “wilfully,.deliberately,” etc., do not.qualify the allegation which declares that the defendant inflicted a mortal wound. The tenth count of this indictment is contained in the statement of facts, and it will be observed that it charges that the defendant “wilfully and of .his deliberately premeditated malice aforethought did make an assault; and in some way and manner, ■ and by some means, instruments, and weapons to the grand jurors unknown . . . . did then and there feloniously, wilfully, and of his deliberately premeditated malice aforethought, inflict on and create in the said John Embody certain mortal injuries and a mortal sickness .... of which said mortal sickness and injuries .... the said John Embody-then and there instantly died.” To charge that A ^feloniously, wilfully, etc., assaulted B, and feloniously, wilfully, and of his deliberately premeditated malice aforethought, inflicted upon B a mortal ipjury and a mortal sickness, of which B dies, is .practically to charge that the death of B is the result of the wilful, deliberate, and premeditated killing by A. It is insisted, however, that the expression “ mortal injuries and a mortal sickness” is not sufficient; that it should read “ mortal bruise or mortal wound.” This, we think, is a distinction too refined. The statement was sufficient to notify the defendant of tjie nature of the crime charged against him.

The judgment and order of the court below are affirmed; said judgment to be carried into effect as directed by a warrant to be issued by this court to the sheriff of Lewis and Clarke County, commanding him to do execution of the sentence at such time as shall be appointed therein, as provided in section 398 of the Code of Criminal Procedure.

Judgment affirmed.

Liddell, J., and De Wolfe, J., concur.