State v. Wong Fun , 22 Nev. 336 ( 1895 )

The defendant was convicted of murder in the first degree and appeals. The charging part of the indictment reads as follows: "The said George Fong, on the 4th day of October, A. D. 1894, or thereabouts, without authority of law, and with malice aforethought, killed one Hing Lee, a human being, by shooting him with a pistol, at said county, State of Nevada."

Under our statute dividing murder into two degrees, and the one providing a form of indictment, this indictment is sufficient to support a verdict of murder in the first degree, although it does not charge that the killing was done with premeditation and deliberation. (State v. Millain,3 Nev. 409, 439; State v. Thompson, 12 Nev. 140;State v. Hing, 16 Nev. 307.)

In the second instruction, marked "State's Instruction," the court instructed the jury as follows: "The court instructs you that if, from all the evidence, you are satisfied, beyond a reasonable doubt, that the defendant, Wong Fun, on the 4th day of October, A. D. 1894, at the county of White Pine, State of Nevada, without authority of law, and with malice aforethought, killed Hing Lee by shooting him with a pistol, as alleged in the indictment, your verdict must be, `Guilty of murder in the first degree.'" And again, in "State's Instruction No. 1," the jury were instructed that if they were "satisfied, beyond reasonable doubt, that he did kill the deceased at the time and place and in the manner charged in the indictment, without legal justification, your verdict must be, `Guilty of murder in the first degree.'"

These instructions are clearly erroneous. They define murder in the second degree, and then inform the jury that, if they find those conditions to exist, they must convict the defendant of the first degree. Section 17 of the act concerning crimes and punishments (Gen. Stats., sec. 4581) provides that: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree." As it is not claimed that the murder in this case was perpetrated by means of poison, or lying in wait, or torture, nor that it was done in the perpetration, or attempt to perpetrate, any of the other offenses mentioned, it could only become murder of the first degree by having been willful, deliberate, and premeditated. Without these constituents, the crime would only be murder of the second degree, and it is the failure to notice these most important conditions in the definition of murder of the first degree that makes the instructions erroneous. (State v. Millain, 3 Nev. 409, 445;State v. Anderson, 4 Nev. 265, 276; People v. Valencia, 43 Cal. 552; People v. Iams,57 Cal. 115, 117; People v. Gaunce, 57 Cal. 154;People v. Grigsby, 62 Cal. 482.)

The reference to the indictment does not help the instructions any upon this point, because, as we have seen, the indictment does not allege that the killing was committed "willfully, deliberately and premeditatedly;" conditions that, although not necessary to be stated in the indictment, must be found by the jury to exist, before they are justified in rendering a verdict of murder in the first degree.

It is argued by the attorney-general that the term "malice aforethought," used in the instruction, is equivalent to the terms "willful, deliberate and premeditated," but we cannot agree with that contention. Malice aforethought must exist in both degrees of murder, but if nothing more is shown it is murder of the second degree. (Whart. Hom., sec. 194.) The adjectives "willful, deliberate and premeditated," as used in the statute, mean something over and above malice aforethought. (People v. Long, 39 Cal. 694;People v. Doyell, 48 Cal. 85.)

There was some evidence to support the verdict of murder in the first degree, and under these circumstances, whether it was such or not, and whether the defendant was insane at the time of the killing, were questions pre-eminently for the jury. With their conclusions this court cannot interfere. (State v. Raymond, 11 Nev 99; State v.Crozier, 12 Nev. 300; State v. Mills, Id. 403.)

The judgment is reversed, and cause remanded for a new trial.