State v. Anderson , 53 Or. 479 ( 1909 )

Mr. Justice King

delivered the opinion of the court.

1. We are first confronted with the question: Is there sufficient testimony in the record to bring the accused within the charge under which he was tried; that is, has the State proved that he killed the decedent maliciously, premeditatedly, and with deliberation? It is urged in this connection that defendant was not indicted for killing any one while attempting to commit a felony, and, without the proof with reference to the attempted robbery, the testimony is insufficient to prove either deliberation or malice, and that therefore his conviction of any higher offense than manslaughter is unlawful. On the other hand, the State maintains that the indictment, although in the usual form, averring deliberate and premeditated malice in the commission of the crime, is sufficient to charge murder in the first degree, and the proof that the killing was done while attempting to rob the decedent without other evidence was sufficient.

The court gave to the jury the law governing the three degrees of crime, murder in the first degree, murder in the second degree, and manslaughter, and in doing so stated the law in the language of the statute on the subject, which included the reference therein to the effect that if a person shall kill another while committing a felony, such as arson, robbery, etc., it shall constitute murder in the first degree. The general tenor of the court’s ' instructions, however, clearly indicated to the jury that the defendant was on trial, not for having committed murder while attempting to commit a felony, but with deliberate and premeditated malice, particularly instructing the jury that “the charge here is that the defendant purposely, and of deliberate and premeditated malice killed Harry M. Logan, and unless you find that the deliberation and premeditation are proven by some evidence herein sufficient to convince your minds, beyond a reasonable doubt, you cannot find him guilty of murder in the first degree.” No exception appears to have been taken to the court’s explanation of the different degrees in the manner stated, nor does it appear that defendant requested any instruction bearing on this feature, further than might be inferred from the motions to take from the jury-the question of murder in the first and second degrees, respectively, and to strike out and take from their consideration the testimony of the witness Hilts, which alluded to the killing as having occurred while trying to “hold up” the decedent. The question as to whether a person charged with murder in the first degree, and where the evidence is insufficient to show any premeditation or deliberation, may be convicted under a showing that the killing occurred while committing a felony, is one upon which, among the courts, there has been much diversity of opinion. In Arkansas it was first held that a conviction could be had under such indictment, upon proof that the killing occurred while the accused was engaged in an attempt to commit a. felony; but on rehearing this position, by a divided court, was reversed, the majority holding that, since deliberation and premeditation were essential averments in an indictment for murder in the first degree, in the absence of other proof of deliberation and premeditation, the want thereof could not be replaced by a showing that the killing occurred in the commission of a felony, without an averment to that effect, the majority, in an opinion by Justice Battle, observing: “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 they 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 (31 S. W. 150: 32 S. W. 128), and held that it did make a change in the form of the indictment.” Rayburn v. State, 69 Ark. 177, 185 (63 S. W. 356).

On the other hand, Texas, by a divided court, takes the opposite view. See Sharpe v. State, 17 Tex. App. 487. The holding on the subject by the courts of each of these states are supported by eminent authority. It is thus obvious that the question is one not easy of solution, and one which we should not determine until properly before us. As to what may be the rule in this State, which in its organic law provides that the accused, in all criminal prosecutions, shall have the right to a public trial and “to demand the nature and cause of the accusation against him, and to have a copy thereof * * ” (Section 11, Article I, Constitution of Oregon), which is supplemehted by a statute to the effect that an indictment to be sufficient must be direct and certain as regards the crime charged, must charge but one crime, and in one form only, and which gives forms therefor (Sections 1305, 1306, 1307, 1308, B. & C. Comp.), in reference to which one form is provided for murder in the first degree with deliberation and premeditation, and another in the same degree for murder committed while attempting a felony, has not been passed upon by this court; nor has the question been squarely presented for adjudication, and, in view of the testimony presented by the record, the consideration thereof is not essential to its determination in this case. Whatever may be the proper rule to be invoked upon the subject, there can be no doubt that the testimony of Hilts, with reference to how the killing occurred, as disclosed by the statements of defendant to him, was- properly admitted; for the attempt at robbery and the killing were so closely connected and interwoven as to be inseparable, and it certainly could not be held that available testimony tending to explain and prove the killing must be excluded merely because connected therewith is a reference to some additional felony, even though it should not be sufficient, in the absence of an averment with reference to such additional incidents connected with the unlawful act thereby disclosed, to establish deliberate and premeditated malice. All of these facts and incidents were entitled to go before the jury that they might be enabled to ascertain whether there was any deliberation or premeditation. True, circumstances might arise whereby the court, assuming the averment insisted upon essential to the admission of such testimony, should instruct the jury that they could not, from the commission of the robbery alone, without other proof in connection with the homicide, find the crime was committed with deliberate and premeditated malice; such, for example, as where, in an attempt to commit arson, but without an intent, apparent or otherwise, or of other evidence tending to show an intent to kill or injure any one in so doing, or in instances of an effort to commit robbery, where, under ordinary circumstance, no injury to the person of the one robbed would ensue, but through some unforeseen circumstances or acts, death results therefrom, in which event a mere proof of the resultant death would not be sufficient evidence of deliberation or premeditation and could be covered by proper instructions on the subject. The testimony here adduced does not disclose a case of that character.

2. The defendant through his admission to Hilts stated he “held up” the decedent, was knocked down, and to escape being “taken in” shot him. This admission, if unsupported by any other evidence, could not of . itself support a conviction. State v. Willis, 71 Conn. 293, 308 (41 Atl. 820).

3. The expression “hold up,” in its ordinary significance, means a forcible detention of the person held with intent to commit robbery. Territory v. McGinnis, 10 N. M. 269, 279 (61 Pac. 208). This implies force, if necessary, to carry the purpose into effect, even to the killing of the person thus called upon, if necessary to the perpetration of the robbery, or the escape of the assailant. To carry out such plans deliberation and premeditation becomes necessary, and when the killing occurs, malice is implied, subject to rebuttal by proof, it is true (State v. Carver, 22 Or. 602: 30 Pac. 315), but otherwise it is presumed.

4. The admission of defendant to Hilts, while not testimony, yet being a fact subject to proof, the testimony relative thereto was relevant to the issues presented, and accordingly admissible, and furnished evidence of deliberation and premeditation; and while, as stated, the admission, if standing alone and unsupported by other evidence, could not of itself have supported a conviction, when coupled with the many other circumstances noted in our statement of the effect of the testimony unfavorable to defendant, it was ample for the purpose. It was not the robbery that was sought to be established by this line of inquiry, but the fact that defendant did the shooting which resulted in the death charged to him, and that it was. done after consideration and deliberation. The attempted robbery was only mentioned by reason of the homicide having been inseparably connected therewith, which feature, and effects thereof, could have been guarded against by the giving, or requesting, of the proper instructions, if, in law, necessary under the indictment to a fair trial of the accused.

Construing all of the facts and circumstances disclosed in the unfavorable light to defendant, in which the jury under the law were entitled to interpret them, while not by any means conclusive, and perhaps such that, with reference to the guilt, or innocence, or degree of guilt, as the case might be, of the defendant, different conclusions may be deducible therefrom, the showing, under our procedure, was sufficient to entitle the jury to determine whether any deliberation or premeditation accompanied the crime, and the cause was therefore properly submitted to them for their consideration. State v. Anderson, 10 Or. 448, 463; State v. Barnes, 47 Or. 592 (85 Pac. 998: 7 L. R. A. (N. S.) 181); Utah v. King, 24 Utah, 482 (68 Pac. 418: 91 Am. St. Rep. 808).

It follows that under the record presented, and law applicable thereto, the judgment of the court below must be affirmed. Affirmed.