Aubrey v. State

35 S.W. 792, 62 Ark. 368, 1896 Ark. LEXIS 187

• Court: Supreme Court of Arkansas
• Decided: May 2, 1896
• Status: Published

Opinion

Wood, J.

The defendant was convicted of murder in the first degree, upon an indictment which charged that he “did unlawfully and feloniously, with malice aforethought, and with premeditation and deliberation, assault, kill, and murder one Rufus Harris by shooting him with a pistol, * * * with the felonious intent to kill and murder,” etc. Does the omission of the word “wilfully” render the indictment defective as a charge for murder in the first degree ? A wilful killing is an intended killing. Both the words “deliberation” and “premeditation” involve a prior purpose to do the act in question. And it is impossible to conceive of a murder committed with a “felonious intent” that is not wilful. State v. Townsend, 24 N. W. Rep. 535; Leonard v. Territory, 7 Pac. Rep. 872, and authorities cited; State v. Shelton, 64 Iowa, 333; State v. Stackhouse, 24 Kas. 445; 1 Wharton, Cr. Law, sec. 380. We conclude therefore that the word “wilful” finds its equivalent in the other terms employed.

We cannot say that the verdict is without evidence to support it.

Affirmed.