Morning journal and courier., 1882-06-12
The Chip" Smith Case.
The Motion in Error to be Argued this Afternoon-Grounds of the PIaintiff's g D

The Motion fn Error to be Argued this
 Afternoon-Groundso of the Plaintiffs
 Application for a New Trial.
 This afternoon at ? o'clock the final argu- ments in the case of James (''Chip'') Smith will be made before the judges of the Su- preme Court in the Superior Court room It is motion in error, and of course if an er- TOT should be found in the indictment it will man. The grounds of the plaintiffs petition as stated in the briefs of the plaintiffs at- torneys, and as will be argued this afternoon, are as follows:
 Any relaxation of the established rules of pleading which ignores and omits to follow the great foundation principle on which those rules are based is dangerous in the extreme. That no injustice may have been, in effect, done in particular case, is an answer with out force or reason, and to listen to it is but lending the ear of justice to the senseless argument of it's worst enemy
 The rule to which we refer, which the expe- rience of generations has established as
 safeguard both of the accused and of the
 administration of justice in criminal causes,
 especially of the grave nature of the case at
 bar, requires that every act necessary to con
 stitute the offense with which the accused is
 sought to be charged, shall be clearly and
 distinctly alleged, and for the purpose of de-
 termining the degree of the crime, the intent
 with which the act or acts were done must be
 alleged with equal accuracy, and where the
 time in which the intent is formed, and the
 duration of the intent is material, that ele-
 ment of the offense must appear affirmative
 ly in the indictment, thereby rendering the
 indictment free from all obscurity and un-
 certainty, and giving to the accused full and accurate information in relation to the charge against him. Under the common law rules of pleading any allegation declaratory of what
 the ofense sought to be charged is, is useless
 surplusage.
 The crime charged must be ascertained
 from the accurate statement of act, int ent
 and time, in the indictment itself. In the case at bar it is not only necessary to allege that the killing was unlawful but also that the same was malicious and inten-
 tional, and that the intent possessed the ad ditional element of duration and premedita- ton. And in order that no uncertainty ex- ist as to the offense intended to be charged, the element of deliberation and premedita- tion should have been distinctly and clearly alleged. A perfect information or complaint charging 8 minor statutory oHense must at least charge the crime in the words of the statute. To hold that indictment for
 murder in the first degree is sufficient with out the allegation of deliberation and pre- meditation is relaxing the rule of pleading in capital cases below the proper standard in petty offenses. This is wholly inconsistent
 with the rule and practice which has hereto fore held the pleader to the strictest accuracy in charging the higher grades of crime. | In the case at bar the indictment disclos es both uncertainty and inconsistency in the allegations of act, and intent the charge that
 
 1 is wholly omitted, and the ofense charged is at the most no greater crime than murder in I the second degree, while in the conclusion of l the indictment it IS stated that in manner and | form aforesaid the accused committed the crime of murder in the first degrre that is, ] having done the acts. and had the intent necessary only, and sufficient only, to con- | stitute murder in the second degree; by such acts and such intent, constituting the l lower grade of the offense, he has committed ! the higher grade.
 AS the element of deliberation and pre- meditation is omitted in the indictment, it cannot be assumed that it was either proven or found as fact therefore, it is unjust | that verdict or judgment should be sustain ! ed in this case, for crime material ele- ! ment of which has been omitted, both in al- ' legation and proof. The defect in the indct- ment is not cured, nor the want of the ale gation of deliberation and reconciliation, supplied by the addition of the concluding portion of ths indictment. The man ner and form of the offense as I charged, being simply murder in the I second degree the statement that 80 done l that is, in manner and form aforesaid, it was murder in the first degree, is inconsistent and absurd. It amounts to this, that the indict- | ment charges that the crime without the ele l ment of deliberation and reconciliation was murder in the first degree.
 To carry this sentence into execution
 would be to take life upon charge, as ap- pears by the indictment for having done cer- 1 tain acts, and had certain intent sufficient only to constitute an otfense less in degree l than that for which he is executed In this State, by statute, it is necessary that
 'sthe degree of the crime shall be alleged in ] the indictment"
 If it is alleged or pleaded it must be well | pleaded.