, 1858-01-08
OLYMPIA WASHINGTON TERRITORY FRIDAY JANUARY 1853

merged in the county OF Pierce.
1t is not the case of an assumption oI
Jurisdiction by the courts Of one county tc
try felonies committed in another 1t is
not the case of carrying person charged
with having committed a crime in one
State, into another for trial. or uto sep
arate and distinct district These all oper
ate to the exclusion of the State, district
or county in which the offence was commit
ted; but in the case under consideration
there is no such exclusion Of the county Of
4 Pierce, as would bring the case within the
purview of the 9Th section of the Coustitu
tion referred to, or that stringent rule oil
the common law, which required that a
party charged with crime should be tried
in the county in which the offence was COM
mitted.
We are therefore Of the opinion, that
the district court Of Pierce county, in the
first instance, and the district court for the
ID Judicial district, in the second place,
hold full and complete jurisdiction in the
premises.
Another error, as it is alleged, has been
suggested by the record, and has been ar
gued with some degree Of emphasis, viz
That the Indictment is not framed in con-
formity with the statute law Of Washing
ton Territory, in this, that although the in
dictment, which contains but a single count,
is good indictment at common law for
murder in the first degree, yet that it is
not good under the statute which divides
the offence, which at common law was muir
der in the first degree, into two separate
and distinct grades-murder in the lst and
2nd degree-and provides two different
punishments; and is as follows:
every person who shall purposely and
Of deliberate and premeditated malice, or
in the perpetration or attempt to perpe-
trate any rape, arson, robbery or burglary,
or by administering poison, or causing the
same to be done, kill another, every such
person shall be deemed guilty Of murder In
the first degree, and upon conviction there
of shall suffer death."-[Sec. IL, L. W. Ty
page IS. j
Sec. l3, Of the same act, provides that
every person who shall purpOsely and ma
liciously, but without delberation and pre-.
meditation. kill another every such person
shall be deemed guilty Of murder in the
second degree, aud upon conviction thereof
shall be imprisoned in the penitentiary, &c"
Now it is claimed in the argument oi
the counsel for plaintiff in error that in
framing an indictment for murder under
our statute = the offence should be
charged TO have been committed under the
specific circumstances named In the statute,
and in the terms used In the statute, so
that it might be determined by the record
whether the offence charged be murder in
the FIRST or second degree. II there be
anything in the law constituting different
grades Of this offence which would work
such an innovation in the common law rule
as to require a modification of the common
law form Of the indictment, then this OBJ
lection would be void, and the indictment
insufficient for the purposes Of our statute.
In the case Of q statute offence unknown
to the common law, it is a general rule
that the indictment must charge the offence
to have been committed under the circum-
stance, and with the intent mentioned in
the statute, which Of course contains the
only appropriate definition Of the crime
State VS.. Jones, 2 Yerg. Ten. r. 22; State
vs.. o. Bannon, Bayley, Law II. IA
but even in that case it is said 10 be not
necessary to pursue the exact words Of the
statute creating the offence, if other words
are used in the indictment which are equiv
alent, or words Of more extensive signiica-
ton, and which necessarily include the
words used in the statute as when advising
ally is substituted for knowingly, or mali
ciously for wilfully, and the Aike.-[ King
VS.. Fuller, Bos. 4 Pull ls0; U. States VS..
Bachelor, 2 Gall II. Is.
It is otherwise in indictments for com.
mon law offences, when the law has adopt
ed certain technical expressions to define
the offence, or to indicate the intention
with which it was connected in which
case the crime must be described, or the
intention must be expressed by the techni-
cal terms prescribed and no other.
1t has frequently been decided that in
an indictment for murder, the terms mHr-
der of his aldisceaf forethoHgM are absolute
ly necessary in describing the offence Of
murder.
In the case Of the People VS.. Enoch, l3
Wendell Il. page l73, q case most elabo-
rately argued by counsel, passed upon by
the Supreme Court, and subsequently, by
the appellate court in the opinion delivered
by the Chancellor, it is laid down that in
determining the question whether an " in
dictment should be drawn as at the com
mon law, or should appear to be founded
upon a statutary provision which is ap-
piled to the offence, the following rules are
to be observed: Ifthe statute creates an Of
fence which, when committed under particu-
lar circumstances not Reeessarily included in
the original offence is punishable in differ
ent manner from what it would have been
without such circumstances or where the
statute changes the nature of the common
law offence to one Of a higher degree as
when what was originally a misdemeanor
is made felony, the indictment should be
drawn in reference to the provisions Of the
statute creating or changing tho nature OF
the offence, and should conclude against
the form of the statute;" but il the statute
L. i Il.