State v. Knouse

29 Iowa 118

Opinion

Wright, J.

This indictment is in every essential respect like that against McCormick (27 Iowa, 402). In this, as in that, it is not alleged that the hilling was willful, deliberate and premeditated. This was necessary, aside from the exceptional cases mentioned in the statute— as when the killing is by poison, or lying in wait, or the like — to constitute murder in the first degree. This being so, it was, upon the authority of The Slate v. Boyle, 28 Iowa, 522, and cases therein cited, prejudicial error, to put the prisoner upon his trial for an offense not charged, though he was only convicted for the lesser or the one described in the indictment.

The grounds upon which this conclusion is based have been so recently and fully presented as to render it unnecessary to do more than thus refer to the cases which lead to the resolution that this judgment must be reversed and remanded.

Reversed.