State v. Lynch

26 P. 219, 20 Or. 389, 1891 Ore. LEXIS 89

• Court: Oregon Supreme Court
• Decided: March 23, 1891
• Status: Published

Opinions

Strahan, C. J.

— There was but one question presented upon the argument that we deem necessary to notice, and that is the sufficiency of the indictment. The appellant’s contention is that the indictment is fatally defective for the reason that it fails to charge that the assault was made maliciously or of deliberate and premeditated malice, and this is the only question necessary to be decided. The indictment is founded on section 1740, Hill’s Code, which is as follows: “If any person shall assault another with intent to kill, to rob or to commit a rape upon such other,” etc. The indictment charges that the assault was made upon the prosecutorwith the intent him, the said James Brown, to then and there kill and murder.” It may be safely conceded that the authorities are not uniform on this subject, and probably the weight of authority is with the appellant; but in State v. Doty, 5 Or. 491, a conviction was upheld upon an indictment for this crime which certainly was not drawn with as much technical accuracy as the one now before the court. After disposing of some other questions presented in that case, the court said: “But we do not think it can be maintained that this indictment does not charge a crime within the meaning of subdivision 4, section 123, of the criminal code. The charge is in the language of the statute, and the legal signification of the term ‘ assault with intent to kill ’ implies the unlawful and felonious attempt to take the life of another.” This is a construction of this provision of the Code by this court, which has never been questioned and which we do not feel at liberty to disregard. Mr. Bishop, in his work on Directions and Forms, is in accord with this construction. In section 553 this distinguished author says: “In general, the verb ‘to kill’ in such a connection requires only the intent to do what would constitute, if done, either murder or manslaughter.” And he adds, in section 555, “ The common and prudent method of alleging this intent, not inquiring whether any other is permissible, is after its legal effect in distinction from its outward form; as, ‘with intent to kill the said H,’ or ‘ with intent to murder the said H,’ or ‘ with intent to kill and murder the said H,’ or ‘with intent feloniously and of his malice aforethought to kill and murder the said H,’ or ‘ with intent feloniously and of his malice aforethought to commit murder in the first degree.’” And in effect the same doctrine is announced in People v. Congleton, 44 Cal. 92; People v. Swenson, 49 Cal. 388.

The intent necessary to constitute a crime under this section of the Code is stated with as much particularity as could be reasonably desired. The assault was made with intent to kill and murder, and the circumstances of the assault are stated with particularity. In addition to this, the court instructed the jury in effect that they must find that the assault was made of deliberate and premeditated malice, or maliciously, before they could find the defendant guilty. Practically, the defendant had the benefit of every principle of law for which he has contended on this appeal.

Finding no error in the judgment appealed from, the same must be affirmed.