Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-02-10

both froms of Indictment, and are used
| to express the same meaning in each
form. The phrases malice afore-
thought" of the old form, is dropped,
and the words maliciously, deliberate
| ly and unlawfully" are used in lieu
| thereof in the new form. The differ
ence, then, between the old and new
| form of Indictment is the difference In
I meaning between the phrases malice
aforethought" and deliberately, mali
| ciously and unlawfully." or, the differ
! ence between doing an unlawful act
with malice aforethought" and de
liberately and maliciously." Bouvier
says malice aforethought" as used de-
| scriptive of murder, means not DELHI
| Grafton or lapse of time but design and
purpose, as contradistinguisned from
! accident or mischance, and that the
word malicious, itself, means doing a
| wrongful act Intentionally, without
| just cause or excuse. Doing an act
maliciously means the same as doing it
with malice; and doing an act mali
! ciously and deliberately must be to do
| it with design or purpose, after having
| deliberated; i. e., weighed the matter
with view to reaching conclusion.
I There then can be no difference in
meaning between an unlawful act done
| with malice aforethought and an I'M
| lawful act done deliberately and mali
ciously. In each instance it describes
an act done with wicked purpose, af-
| ter consideration and reflection.
| So far, then, as the phraSeology OF
| the old indictment and the statutory
! indictment are concerned, they are
| Identical in their allegation of intent,
| and differ only as to the omission In
| the statutory form, of all description OF
manner and means, in and by which
the murder was accomplished.
am forced to the opinion on reason
that the murder, intended by the form
of indictment given in the statute, is
murder in the first degree, because the
very terms employed are aptly de-
scriptive of that degree of homocide,
rather than the milder form OF homo
eide. An Indictment for murder in the
first degree would not be good, for any
degree of murder, if the killing was
simply alleged to have been done will
fully, deliberately and premeditatedly.
The execution of a man under the sem
tence of competent court is a wilful,
deliberate and premeditated killing, but
lawful killing, as all murder must be.
Judge Holt, in State VS.. Hobbs, 37th
West Virginia, SGT, says the word de
liberate" and "premeditated, as used
in the statute, Sec. l, Chap. IA, are
synonymous, and 'premeditated dis
pensed with in the form of indictment.
Black says elaboration is prolonged
meditation. The same definition is
given in "A Missouri, 249. In 2Sth Iowa,
524, it is held that deliberately is a
broader term than premeditatedly. 1t
is easily to be seen that deliberately is
a broader term than premeditatedly,
and when you have said an act was de-
liberately done, you have said it was
preme dltatedly done, also, and hence the
form Of indie ment under ccn:ideration,
by using the word deliberately has
rendered the word premeditatedly' IN
necessary.
Murder in the second degree Davis,
109l is unknown to common law. 1t is
a grade of murder created by statute,
and it is intended to embrace those
cases of homicide in which the element
of killing maliciously is small or want
ing altogether. At common law, the
man who threw from the top Of a build
ing into crowded street below without
warning, a piece of lumber, and killed
a man, was equally guilty of murder
with the man who deliberately and in
tentiOnally killed another by torture or
poison. AS stated, murder in the Sec
ond degree, was designed to embrace
those cases of killing that were the
results of carelessness, rather than a
deliberate intention to kill, and the
statute creating that degree of murder,
in no way altered the common law
crime of murder, Davis, 100, and
didn't divide that crime into two dis
tinct offences; but to graduate the pun
ishment of each case of murder accord
ing to its atrocity, distinguished the
crime into two degrees.
Now, having aScertained the purport
OF the language used in the form of an
indictment for murder, prescribed in
the statute, and that it is identical in
meaning with the language used in the
old common law indictment for that
crime, and further understanding that
the statute did not alter the crime of
murder and did not divide it into two
distinct offenseS, it is easy to acQuiesce
in the conclusion reached by our SUI
preme Court, viz: that the form of in
dictment prescribed in section l, chap
ter 144 of the Code. is a good indict-
ment for murder in the first degree may
be rendered, and that the omission of
the word "premeditated" from that
form, does not vitiate it. This has been
the holding of the Court in all eases
where the indictment for murder has
been questioned and discussed. State
VS.. Douglas, 41st West Virginia; State
VS.. Hobbs, 37th West Virginia, S95;
State VS.. Baker, $50 West Virginia, $50;
State v Flanagan, Goth West Virginia.
116: State VS.. Schnelle, oath West Vir-
ginia, 767; State VS.. Smith, Gath West
Virginia, SO.
Proceeding, Judge Hugus took up the
technical objections made by the de-
Tense to the instructions to the jury as
given at the instance of the State and
concluded that they did not justify a
new trial.
Perhaps the most interesting matter
brought out was that relating to the
alleged improper remarks made by Mr..
John A. Howard in his speech before
this point, Judge Hugus said:
On the question of the propriety or
improperly of parts of the closing ar
gument made for the State, very trou-
blesome question is presented. The
subject matter of the question is not
only perplexing in its nature, but the
manner of its presentation is likewise
h hoe