State v. Smith , 1 Or. App. 153 ( 1969 )

The indictment in this case charges that the defendant "purposely and of deliberate and premeditated malice" killed another. It does not charge the commission of felony murder. It is well established that the trial court normally shall instruct on all of the degrees of homicide under such an indictment. State v. Ellsworth, 30 Or. 145, 47 P. 199 (1896). The trial court properly followed this rule.

The court here holds that the jury should have been instructed only on felony murder, relying on State v. Reyes,209 Or. 595, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182 (1957), andState v. Wilson, 182 Or. 681, 189 P.2d 403 (1948).

In the former case, the Supreme Court held that it was proper to introduce evidence of felony murder, and to instruct thereon, under an indictment charging a defendant not under the felony murder clause but for a killing committed under the "purposely and of deliberate and premeditated malice" clause. In that case, however, the court did instruct on all of the degrees of murder. The trial court here followed that procedure.

The indictment in State v. Wilson, supra, charged a killing under the felony murder clause, not one committed under the "purposely and of deliberate and premeditated malice" clause. The language quoted from the majority opinion was set forth in relation to a felony murder indictment, and in my view is so limited in that opinion. Thus I find it necessary to decide whether the instruction on malice was prejudicial. The defendant here, after all, was not convicted of first degree murder, but of second degree. Neither party objected to the submission of second degree murder to the jury.

I believe that the court, under the circumstances of this case, did not err in its instructions defining "maliciously" as used in the second degree murder statute. ORS 163.020 defines second degree murder:

"(1) Any person who kills another purposely and maliciously but without deliberation and premeditation * * * is guilty of murder in the second degree."

Here the defendant filed no requested instruction relating either to second degree murder or to the meaning of the words "malice" or "maliciously." The instruction defining "maliciously" was given substantially in the language of the statute. ORS 161.010 states:

"As used in the statutes relating to crimes and criminal procedure, unless the context requires otherwise:

"* * *

"(4) 'Malice' and 'maliciously' import a wish to vex, annoy or injure another person, established either by proof or presumption of law."

The legislature has the right reasonably to define the terms employed in the statutes which it enacts. It was not in my view error here to instruct on second degree murder, nor was any exception taken thereto by either party.

Since I believe the jury was adequately instructed concerning the crime of which he was convicted, I concur in the result.