Bawden
People v. Bawden
Opinion
Lead Opinion
McFarland, J.
The appellant was convicted of murder in the first degree, and was sentenced to suffer the death penalty, and he appeals from the judgment, from an order denying a new trial, from an order denying his motion in arrest of judgment, and also from an order denying his motion “to dismiss the information and all subsequent proceedings.”
1. The first contention of appellant is, that the court erred in giving the following instruction: “If you find from the evidence, and beyond a reasonable doubt, that, at the time and place mentioned in the information, the defendant did then and there willfully, deliberately, and with premeditation, murder one Lillie M.. Price, then your verdict should be murder in the first degree.”
The main criticism of this instruction is, that it “ leaves out the element of malice aforethought.” But- in this instruction the court was not giving a definition of murder. That it had done very fully in previous instructions, and had told the jury that murder was “ the unlawful killing of a human being with malice aforethought,” *197 and bad given the statutory definitions of malice. In the instruction under review, it was therefore not necessary to repeat the…
Concurring Opinion
Haven, J.
— I concur in the judgment. I think the instruction referred to in the opinion of Mr. Justice McFarland, in which the jury were told what their verdict should be in case they found the defendant guilty of murder in the first degree, and without any extenuating circumstances, was correct. Such an instruction does not in any degree interfere with the discretion which is given the jury in this class of cases. This would be my view if the question were a new one. But as similar instructions have been many times approved by this court, after it has given the matter the careful consideration which cases involving the life of a person must always receive, I think the correctness of such a direction to a jury ought not to be considered an open question. The law on this point ought to be deemed settled. As to the other questions discussed in the opinion, I fully concur.