Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 27 Cal. 573 at 584.
Original Opinion of January 1865, Reported at: 27 Cal. 573.
JUDGES: Sawyer, J., on petition for rehearing. Mr. Chief Justice Sanderson expressed no opinion.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing:
In the petition for rehearing, the counsel for appellant strenuously argues, that the substitution of the word " or," in the place of " and," in the phrase " willful, deliberate and premeditated killing," constituting a part of the statutory definition of murder in the first degree, is a fatal error. He insists that the three words, " willful, deliberate and premeditated," are not synonymous in meaning, and that the definition of murder in the first degree submitted to the jury was essentially and materially different from that contained in the statute. It needs no argument to show that these several words, abstractly and separately considered, are not synonymous. But we are not to consider them separately or abstractly. They are to be considered in connection with the context. In discussing the question, a murder must be assumed to have been proved, and this fact must be considered as one of the conditions of the problem. For, unless there is a murder, no question can arise as to the degree of the murder, and the instruction bears upon the question of the degree only. The offense being murder, the question is, not what does the word " willful," or " deliberate," or " premeditated" mean, but what do the words " willful killing," " deliberate killing," " premeditated killing," standing in relation to the offense of murder, signify? Can there be a " willful killing," a " deliberate killing," or a " premeditated killing," without such killing embracing essentially the legal idea expressed by each of the other phrases? To determine this question it will be necessary to ascertain the legal signification of these several phrases, and upon an examination and analysis of the authorities upon the question as to the degree of murder, the result, we apprehend, will be found to be, that there is a " willful killing," within the meaning of the statute, wherever there is simply a specific intent, a design or purpose formed to take life; that there is a " deliberate killing," wherever such intent or purpose is formed upon deliberation, or consideration, and the deliberation or consideration need not be for any particular period of time; a moment is as effectual as an hour or a day; and there is a " premeditated killing," wherever the deliberation or consideration precedes the purpose formed, and--as before stated with respect to deliberation--it need not precede the purpose formed for any particular period of time. In a late case in Tennessee (as quoted in 1 Whart. Cr. Law, Sec. 1114), the court say: " It is true the act says the killing must be willful, deliberate and premeditated. But every intentional act is of course a willful one, and deliberation and premeditation simply mean that the act was done with reflection and conceived beforehand. No specific length of time is required for such deliberation." Compare these well-established legal definitions of the several phrases in question, and see if each does not necessarily imply all of the others? As to the phrase, " willful killing," there seems to be no room for doubt. How is it possible for the mind to perform the operation of willing--of determining to do an act--of forming a purpose, without a preconsideration of the question? If A. determines to go to San Francisco, he must necessarily have thought upon the subject, considered the question, before he determined to go. And there would seem to be as little doubt as to the other two phrases. A man may deliberate or meditate upon the subject of killing, and stop short of willing, or forming a purpose to kill. If he does stop upon the deliberation or meditation, without forming a purpose, he certainly will not kill, at least under such circumstances as will constitute the crime of murder. It seems as impossible to perpetrate a " deliberate killing ," or a " premeditated killing ," without first willing or forming the purpose to do the act, as to form the purpose without a preconsideration. If there is any appreciable, substantial, material element affecting the degree of the offense expressed, or implied, by one of these phrases, that is not necessarily implied by each of the others, we are unable to discover it; and this seems to be the opinion of Mr. Wharton, the author of a very learned and carefully prepared work on American Criminal Law. He says: " In Pennsylvania, New Jersey, Virginia, Alabama and Michigan the killing, to constitute murder in the first degree, must be 'willful, deliberate and premeditated.' The omission of 'willful' in New Hampshire, and the addition of 'malicious' in Tennessee, cannot, it is apprehended, vary the construction given to the statutes." (Am. Crim. Law, 5th ed., Sec. 1084.) If the omission of " willful" cannot vary the construction, it must be because a deliberate or premeditated killing necessarily implies a willful killing, and if the word " willful" --the most comprehensive term, if there is any difference--can be omitted without varying the construction, certainly either of the others can be dispensed with. Such being the case it is not material whether the word " or," or " and," be used. The word " malicious" evidently could not vary the construction, for the killing must be malicious to constitute murder in either degree. We may add, that the passage quoted may be regarded as expressing the matured opinion of the author, for it is also found in the earlier editions of his work on Criminal Law. Thus, after this work has been for several years before the public and subjected to the criticisms of courts and the legal profession, it is still retained in the fifth and and last edition. The language in the statutes of Virginia is the same as in our own. Yet, in Jones's Case (1 Leigh, 654), Mr. Justice Daniel, who delivered the opinion of the court, in his frequent repetitions of the clause in question, uses the words " or" and " and," indiscriminately. The exact point was not under consideration as to the effect of the use of these different words, and of course the case is not authority upon the point now before us. But it shows, at least, that it did not occur to the learned judge at the time, that the two phrases did not substantially express the same legal idea. Mr. Chief Justice Hornblower--as quoted in Whart. Law of Homicide, 382--commenting upon the statutory provision in New Jersey--which is the same as ours--says: " Again, the premeditation or intent to kill need not be for a day, or an hour, or even for a minute. For if the jury believe there was a design, a determination to kill, distinctly formed in the mind at any moment before, or at the time the pistol was fired or the blow was struck, it was a willful, deliberate and premeditated killing, and therefore murder in the first degree." Now, here it is said, substantially, that " a design, a determination to kill, distinctly formed in the mind," followed by the act of killing, embraces all the elements required by the statute to constitute murder in the first degree. It is scarcely within the range of possibility that the inadvertent use of the word " or," instead of " and," in the charge of the court--whether upon a critical analysis it shall be found to express precisely the same idea or not--could have had the slightest influence upon the verdict.
Upon the case disclosed by the record, there cannot be a shadow of doubt that the prisoner was in fact guilty of murder in the first degree. Nevertheless, if it had appeared that any error had been committed, which rendered it even in a remote degree probable that the verdict could have been in any way affected by it unfavorably to the defendant, we should feel it our duty to reverse the judgment. We cannot perceive that there is any substantial material difference in the legal construction to be given to the phrase contained in the charge, and that embraced in the statute, or that any injury could have resulted to defendant. We see no other point in the petition that requires further discussion. Rehearing denied.