where an indictment for murder was sufficient to charge manslaughter, for which the defendant was convicted, its failure to sufficiently charge murder was not material
How later courts described this case
- where an indictment for murder was sufficient to charge manslaughter, for which the defendant was convicted, its failure to sufficiently charge murder was not material
- improperly pleaded murder charge does not require reversal of conviction for lesser included offense.of manslaughter where indictment properly alleged manslaughter
- “The objection that the facts stated in the indictment do not constitute a crime may be taken for the first time in the appellate court and is not waived by failing to demur or move for arrest of judgment in the trial court.”
Written by the judges who cited it.
The opinion
On the Merits.
[ 108 Pac. 512 .]
Mr. Justice Slater
delivered the opinion of the court.
5. The defendant was, by information, charged with the crime of murder in the first degree, and upon trial was convicted' of. manslaughter. The charging part of the information is as follows:
“The said Edward Hugh Martin, on the 1st day of May, A. D. 1908, in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully, feloniously, purposely, and of his, the said Edward Hugh Martin’s, deliberate and premeditated *407 malice, kill and murder one Nathan Wolff, by then and there unlawfully, feloniously, purposely, and of his, the said Edward Hugh Martin’s, deliberate and premeditated malice, striking, hitting, and beating him, the said Nathan Wolff, with a sharp instrument, a more particular description of which is to the district attorney unknown, contrary to the statutes made and provided, and against the peace and dignity of the State of Oregon.
From the judgment entered against him, the defendant has appealed; but, having failed to procure and file a bill of exceptions, the only subject of inquiry is the sufficiency of the information.
6. It is urged in his behalf that there is no crime charged because there is a failure to allege: (1) Both an intent to assault and an intent to kill; (2) malice aforethought in words which will bear no other reasonable construction, both as to the wounding and the killing; and (8) the time of the death of the person assaulted. In support of these several propositions, it is claimed that that part of the information preceding the word “by” is not of the charging part, and states only a conclusion of law. The following cases are some of those particularly urged upon our attention as holding in accord with counsel’s contention: Fouts v. State, 8 Ohio St. 98 ; Kain v. State, 8 Ohio St. 307 ; Schaffer v. State, 22 Neb. 557 ( 35 N. W. 384 : 3 Am. St. Rep. 274 ); State v. Linhoff, 121 Iowa, 632 ( 97 N. W. 77 ) ; People v. Cox, 9 Cal. 32 . The indictments there considered were attempted to be drawn in form as at common law. For instance, in Fouts v. State, 8 Ohio St. 98 , which seems to be a leading case, the indictment was intended to charge murder. First there is alleged in legal terms, with words descriptive of the intent and premeditated malice, a felonious assault with a certain weapon inflicting a particular mortal wound, describing it, which resulted in death at the instant or at a subsequent time. Because the indictment did not contain, in the description of the crime, a direct and specific averment of a purpose or intent to inflict a *408 mortal wound, or to kill, it was held insufficient; but, to avoid the involved and technical circumlocution of the common law, our statute has modified and simplified the form of charging such crimes by permitting the direct averment of the intent, malice aforethought, and the result of the assault combined in these words: That the accused at a specified time and place, purposely and of his premeditated malice, killed C. D. by shooting him with a gun or pistol, etc. In charging the crime in the information under consideration, some amplification of the form has been indulged in, but not, we think, to its material detriment. It is a sufficient answer to say that the language employed is substantially the same as that-authorized by the Code, which has been repeatedly sanctioned by this court. State v. Dodson, 4 Or. 64 ; State v. Brown, 7 Or. 186 ; State v. Wright 19 Or. 258 ( 24 Pac. 229 ) ; State v. Childers, 32 Or. Í19 ( 49 Pac. 801 ). Section 1304, B. & C. Comp. gives a general form of indictment, and in the section next following provides that: “The manner of stating the act constituting the crime, as set forth in the appendix to this Code, is sufficient in all cases where the forms there given are applicable, and in other cases forms may be used as nearly similar as the nature of the case will permit.” Form No. 1 of the appendix provides a form for the charging part of an indictment for murder in the first degree, which is substantially that used in this instance.
7. It might be said that the consideration of the first two points urged is not necessary to a decision of the case, for they are concerned only with the charge of murder in the' first degree, while the information is clearly sufficient to charge manslaughter, of which the defendant was convicted.
Finding the information sufficient to support the judgment, it is therefore affirmed. Affirmed.