State v. Butchek , 121 Or. 141 ( 1927 )

Rehearing denied March 29, 1927. ON PETITION FOR REHEARING. (254 P. 805.) REHEARING DENIED. In his petition for rehearing, defendant renews his former assignments of error. These assignments were treated in the original opinion. However, owing to the gravity of the case, we will notice his assertion of the absence of proof of deliberation and premeditation, and that "the evidence is all to the effect that there was no intention, no deliberation, no premeditation." For a statement of the facts, see our former opinion. The evidence shows that the defendant committed an atrocious homicide. He seems to have been angered with his wife because of his suspicion that she was false to her marriage vows, and, on previous occasions, had accused her of criminal intimacy with another, quarreled with her, threatened her, and assaulted her. On the morning of the homicide, according to his own story, he called her a liar. She answered him with a broom, which he took from her, and she then picked up the hand ax. This he also wrested from her and, when she was fully disarmed, he rained blow after blow upon her head and neck with the hand ax until she fell to the floor bleeding and dying. Soon thereafter he left the house, but, before going, searched the premises for a five-dollar bill that his wife had possessed the night previous.

The indictment in this case alleges a specific purpose to kill. However, in order to constitute murder in the first degree, there must also be deliberation and premeditation. But, like every other material fact arising on the trial, the formed design to kill may be established by circumstantial evidence which satisfies the minds of the jurors, beyond a reasonable doubt, of the existence of a previous purpose to kill. Here the law wisely calls to its aid in the administration of justice presumptive evidence. The trial begins with the presumption of the defendant's innocence. But, upon the proof of the commission of an unlawful act, the presumption is that such act "was done with an unlawful intent," and that the perpetrator "intends the ordinary consequences of his voluntary act." Or. L., § 799, subds. 1-3. When this defendant was intentionally beating his wife over the head with a hand ax, he was committing an unlawful act the ordinary consequence of which is death.

The existence of deliberate and premeditated malice in the killer's mind is the result of a mental condition and is not subject to direct proof. For this reason its existence may be inferred from the tangible facts in evidence: 2 Bishop's Criminal Law, p. 511; Underhill on Criminal Evidence (3 ed.), p. 709. As supporting this doctrine, see Wharton on Homicide, § 150; 2 Bishop's Criminal Law, § 673; Cyclopedia of Criminal Law, Brill, 1076; 30 C.J. 142, 143, — where it is held that deliberation and premeditation may be inferred as a matter of fact from the circumstances, act, conduct, language, the character of the weapon used, and the nature and number of wounds inflicted.

Neither is the question, How long did the defendant deliberate upon a premeditated design to kill, before the execution of the mortal strokes with the ax? but, Did he deliberate at all? State v. Ah Mook, 12 Nev. 369. The law does not attempt to fix a limit to the time which must elapse between the formation of the purpose to kill and its execution, in order to admit of a finding of the elements of premeditation and deliberation necessary to a conviction of murder in the first degree. Where a homicide has been preceded by a concurrence of design with an intention to kill formed in cool blood, and these are followed by deliberation and premeditation, "although they follow as instantaneously as successive thoughts can follow each other the perpetrator may be guilty of murder in the first degree." Aszman v. State, 123 Ind. 352 (24 N.E. 123, 8 L.R.A. 33). To similar effect, see People v. Sanchez, 24 Cal. 17;Mitchum v. State, 11 Ga. 615; State v. Dennison, 44 La. Ann. 135 (10 So. 599); King v. State, 68 Ark. 572 (60 S.W. 951, 82 Am. St. Rep. 307); Allen v. United States,164 U.S. 492 (41 L. Ed. 528, 17 Sup. Ct. Rep. 154); Wharton on Homicide (3 ed.), p. 167. On this point, note the following instructive excerpt from Wharton on Homicide, Section 115:

"It is as much premeditation if it (the intent to kill) enter into the mind of the guilty agent a moment before the act, as if it entered ten years before. And the reason of this is obvious. In the first place, if, in order to make murder in the first degree, it be necessary the idea should be proved to have been conceived a week or a day ahead, there will be no murder in the first degree at all, for the guilty party will take care that the conception be concealed until the limitation is past. * * If the killing was not the instant effect of impulse; if there was hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder."

In further elucidation of the foregoing subject, see valuable note to Whiteford v. Commonwealth, 18 Am. Dec. 771, where Freeman says:

"It is the uniform language of the cases that deliberation and premeditation for a moment, as well as for a week or a year, will render an intentional killing murder in the first degree."

In support of this statement, the annotator cites many cases.

In the case of Commonwealth v. Tucker, 189 Mass. 457 (76 N.E. 127, 7 L.R.A. (N.S.) 1056), we find an interesting discussion of the phrase "deliberately premeditated malice aforethought" by the Supreme Court of Massachusetts, which, we believe, affords much help in arriving at the real meaning of that term. From the opinion of that court, we quote:

"Perhaps the most concise definition of this phrase is found in the charge in Commonwealth v. Piper (See State Ed. 920), tried in January, 1876, before Lord and Colt, J.J. The former, in speaking of the time said to the jury: `What is necessary is, that the person shall intend to kill, he shall unlawfully intend to kill, and he shall kill in pursuance of a purpose which he has formed previously to his putting it into execution. Where the word and the blow come together it is not deliberately premeditated malice aforethought; but, where the purpose is resolved upon and the mind determined to do it before the blow is struck, then it is, within the meaning of the law, deliberately premeditated malice aforethought.'"

The question of deliberation and premeditation is always one for the jury. Following a full and complete instruction as to its duty in the premises, the jury in this case found that the defendant purposely and of deliberate and premeditated malice killed Elizabeth Butchek. That verdict is based upon a sufficiency of evidence, and, as a matter of law, should stand.

The petition is denied. REHEARING DENIED.