
    THE PEOPLE OF THE TERRITORY OF UTAH, Respondent, v. WILFORD H. HALLIDAY, Appellant.
    Criminal Law. — Homicide—Murder First Degree — Indictment— An indictment charging that the defendant unlawfully, felon-iously, willfully and with malice aforethought, held a pistol loaded with gunpowder and leaden bullet at and against the deceased, and then and there unlawfully, feloniously and with malice aforethought discharged the same at the deceased, and that he unlawfully, feloniously, willfully and with malice aforethought did inflict a mortal wound in and through the head of the deceased, of which he instantly died and that in that manner defendant unlawfully, feloniously, willfully and with malice aforethought, killed and murdered the deceased, is sufficient to charge murder in the first degree.
    Id. — Id.—Threats by Deceased. — Threats of deceased against defendant, where there was no evidence tending to prove that on the occasion of the killing deceased assumed a threatening attitude towards defendant or tending to show any circumstance calculated to excite fear of danger in a reasonable person, or intending to show that defendant acted from such fear, but on the contrary the evidence showed that defendant did not act from such fear, were inadmissible in evidence.
    Id. — Id.—Adultery with Dependant’s Wipe. — Under section 1925, • Compiled Laws, 1876, if the husband after learning of the defilement of his wife waits and deliberates and then, not in a sudden heat of passion, went a considerable distance with a pistol to the house of deceased and there killed him, such provocation forms no justification, and evidence thereof is inadmissible.
    Id. — Id.—Instructions.—If the court in charging the jury defines murder in the first degree as murder in the second degree, such error is one of which defendant cannot take advantage because he is not prejudiced thereby.
    Appeal from a judgment of conviction of murder in tbe first degree of tbe district coxirt of tbe second district. The opinion states the facts.
    
      
      Mr. Presley Denny, for appellant.
    
      Mr. Charles W. Zane and Mr. George 8. Peters, for respondent.
   Zane, C. J.:

Tbe appellant was convicted of tbe crime of murder in tbe first degree, and upon tbe recommendation of tbe jury was sentenced by tbe court to imprisonment at bard labor for life in tbe penitentiary. Tbis conviction tbe defendant assigns for error — first, because, as be avers, tbe indictment does not contain an allegation tbat tbe homicide was witb deliberation. To sustain a conviction of murder in tbe first degree tbe indictment must contain all tbe facts essential to tbat crime; in other words, tbe performance of tbe act and tbe forming of tbe intent, together constituting tbe crime, must appear. Tbe indictment in substance states that tbe defendant unlawfully, feloniously, willfully and witb malice aforethought held a pistol loaded witb gunpowder and leaden bullet at and against Joseph Dob-son, the deceased, be being in tbe peace of tbe people, and then and there unlawfully, feloniously, willfully and witb malice aforethought discharged tbe same at tbe deceased, and tbat be unlawfully, feloniously, willfully and witb malice aforethought did inflict a mortal wound in and through the bead of tbe deceased, of which he instantly died, and tbat defendant in tbat manner unlawfully, fel-oniously, willfully and witb malice aforethought killed and murdered tbe deceased, contrary to tbe form of tbe statute, etc. The indictment was a good common-law indictment. Tbe question is, does it sufficiently describe tbe crime of murder in tbe first degree, as defined in chapter 1, entitled “Homicide,” Laws Utah, 1876? Section 87 of that chapter is as follows: “Murder is tbe unlawful killing of a human being, witb malice aforethought;” and section 88: “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away tbe life of a fellow creature; it is implied when no considerable provocation appears, or when tbe circumstances attending tbe killing show an abandoned or malignant heart.” The legislature, in these sections, declared in effect that malice aforethought, when express, shall mean a deliberate intention unlawfully to take away the life of a human being, and is implied when the unlawful killing is without any considerable provocation, or when the circumstances of the killing show an abandoned or malignant heart. Then follows section 89: “Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempted to perpetrate, any arson, rape, burglary, or robbery, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, on perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, is murder in the first degree; and any. other homicide committed under such circumstances as would have constituted murder at common-law, is murder in the second degree.” Whenever the murder is perpetrated with the specific intent to take the life of a human being unlawfully, the killing is deliberate and premeditated.

It is believed that a man cannot form a specific intent to kill a particular individual without such thought as amounts to deliberation and premeditation. Bishop says: “But now comes a statute of dividing — as it is sometimes expressed — murder into two degrees. . . There is added to the former elements of murder the intent to kill. If the murderer does not have in his mind an intent which was not necessary to constitute murder at common law, he does not commit the statutory offense which is called murder in the first degree.” 2 Bish. Crim. Proc., section 582. And Wharton, speaking of the same statute, says: “The general definition of the statute simply divides murder into two classes — murder with a specific intent to take life being murder in the first degree; murder without a specific intent to take life being murder in the second .degree. ... To constitute murder of the first degree the intent of the party killing must have been to take life; whereas, by the common law, if the mortal blow is malicious, and death comes, tbe perpetrator is guilty of murder, whether such an intent does or does not appear to have existed in his mind. The injury being malicious, the common law holds the offender responsible for all the consequences following his unlawful act.” 2 Whart. Crim. Law, sections 1084,110.6.

The question arises, do the facts alleged in the indictment show that the appellant had, at the time of the hill-ing, a specific intent to take the life of the deceased? It is alleged in the indictment that the appellant held in his hand a pistol loaded with powder and leaden bullet, and that he feloniously, willfully, and with malice aforethought held it at and against the deceased, and that he feloniously, willfully, and with malice aforethought discharged the same at the deceased, and thereby wounded him in the head, of which wound he instantly died, and that by that means the appellant feloniously, willfully, and with malice aforethought killed and murdered the deceased. Assuming these facts to be true, no room is left to infer that the appellant intended to commit some other felony, and un-designedly killed the deceased. It cannot be inferred from these facts that the appellant intended to commit a bodily injury without producing death. The weapon, the manner of its use, the place and nature of the wound, forbid such an inference. The appellant must be held to have intended the natural and probable consequences of his act. If a man, knowing what he is doing, shoots a bullet through the head of another person, he will not be heard to say that he did not intend to kill him — that he simply intended a bodily injury without death. But the averments of this indictment go further and say that the killing of the deceased was willful and with malice aforethought — not that some other felonious act was willful and with malice aforethought. Here the deliberation and premeditation must have been on the killing of the deceased, not on the commission of some other felony; and, assuming the acts averred to have been willful and with malice aforethought, they manifest a specific intent to take the life of the deceased. Lowrie, C. J., in the case of Keenan v. Com., 44 Pa. St., 55, after speaking of murder in tbe first and second degrees, and remarking tbat their reported jurisprudence was very uniform in holding that the true criterion of the first degree was the intent to take life, and that the deliberation required was not on the intent, but on the killing, and that the malice must be a special malice which aims at the life of a person, said: “Keeping this common understanding of the definition in mind, we shall also get clear of the influence of the cases •in other states, where the terms ‘deliberate’ and ‘premeditated’ are applied to the malice or intent, and not to the act, and thus seem to require a purpose brooded over, formed, and matured before the occasion at which it is carried into act. Under such a definition of the intention, all our jurisprudence under which malice and intent are implied from the character of the act and from the deadly nature of the weapon used would be set aside; for we could not from these imply such a previous and deliberate, but only a distinctly formed, intent, and this involves deliberation and premeditation, though they may be very' brief. We should therefore blot out all our law relative to implied intent or malice, and require it to be always proved as express; and this would be a most disastrous result, for the most deliberate murderers are usually those who know how to conceal their intent until the occasion arrives for the execution of it.” So, in this case, from the character of the act, and from the deadly nature of the weapon used, and the nature of the wound, with the averments that such acts were willful and with malice aforethought, we must infer a specific intent to kill. Such averments show a specific intent to kill, and such an intent must be preceded by deliberation and premeditation. The law does not require that the words “deliberation” and “premeditation” shall be used in the - indictment; it is sufficient if equivalent language is used.

On the trial counsel for defendant offered to prove that the deceased, more than a day prior to the killing, had made threats against the defendant. Precisely what they were the record does not disclose. To the admission of them in evidence the prosecuting attorney objected on the ground that there was no evidence tending to prove that deceased bad assumed a threatening attitude towards the defendant on the occasion of the killing, and for the reason that the evidence did not tend to show any circumstance sufficient or calculated to excite fear of danger in a reasonable person, and because it did appear from the evidence that defendant did not act from any such fear. The court sustained the objection. To this ruling the defendant excepted, and assigns the same as error.

The only two persons in the room at the time of the homicide besides defendant, the deceased, and his little children — too young to testify — were the wife of the deceased and her mother, Mrs. Reeve. Both of them testified that the defendant came into the house and inquired for ■ Dobson, and, seeing him lying on the bed asleep, or apjjar-ently so, shot him in the arm and through the head before he spoke, and that deceased died in a very few minutes; that they did not see the deceased have a weapon, and that none was found on him. There had been no evidence tending to prove any circumstance to arouse any fear of danger to defendant. Under such conditions, threats at a former time could not constitute any justification. To hold otherwise would be to say that, if one man threatens another, the other is justified in shooting him. After the court had ruled as above, the defendant testified in his own behalf. He was at his father’s house, and went from there to the house of Dobson, tied his horse, walked up to the door and rapped. The wife of the deceased told him to come in. He stepped in, and asked if Joseph Dobson was there. No answer was made. Witness looked at the side room; expected a bullet on the side; had been notified that he would “get it on sight.” He never saw Dobson till he rose up, tad never would have seen him if he hadn’t risen up. To use the witness’ own language: “It don’t matter; I can tell you just exactly how he was lying. He was lying on his left side, with his left arm by his left side, and with his right arm by his right side, — that way, —and his hat on the back of his head.” Witness further testified: “And I guess the quietness — nobody speaking — must be what woke him, and made him raise up when he was asleep. I don’t know whether he was asleep or not, but be turned over from tbat way. He threw bis bands into the pocket of bis overalls — be threw bis band into bis right-band overalls’ pocket to draw 'bis pistol, and I fired and caught him. I could put. a bullet in his eye just as easy as wink.” On cross-examination defendant testified tbat he shot deceased first in bis right arm and then in the left. That these were the only two shots. He had been convicted, be testified, of a felony on the fifth of January, -1883. The witness first testified that he did not see deceased until he rose up, and that he never would have seen him had he not risen; and immediately said tbat be could tell exactly bow the deceased was lying — that be was lying on his left side, with bis left arm by his left side and his right arm by his right side. The defendant did not testify that he saw a.pistol or any other weapon on the deceased at the time be shot him. The evidence shows conclusively that defendant went to the house of the deceased armed with a loaded pistol, and without any provocation at the time of the killing, shot him twice — once in the arm, and once in the head. After the defendant had testified, no witness was asked as to threats,

The evidence shows that defendant was away from home, and returned on Saturday. The defendant offered evidence tending to show tbat deceased had before that time committed adultery with defendant’s wife, and that he was informed of such adultery on Saturday — as a justification for going armed a considerable distance to the house of the deceased, on Sunday evening, and, without provocation at the time, shooting him while in bed. The defendant relies on section 1925, Oomp. Laws 1876. ’The provision is this: Homicide is justifiable when committed by any 0116 * * * in a sudden beat of passion caused by the attempt of any such offender to commit a rape upon his wife, daughter, sister, mother, or other female relation of defendant, or to defile the same, or when the defilement has actually been committed.” The provision of law quoted justifies a homicide committed by the husband in a sudden heat of passion caused by the attempt of the.man slain to defile his wife, or caused by her defilement. But the killing must be without deliberation after knowledge of the fact. Tbe' law will not permit tbe busband to say tbat be slew tbe defiler of bis wife in a sudden beat of passion after deliberating upon tbe defilement 24 hours. Bisbop states tbe rule thus: “If a busband finds bis wife committing adulteiy, and, provoked by tbe wrong, instantly takes' ber life or tbe adulterer’s, * * * tbe homicide is only manslaughter. But if, on merely hearing of tbe outrage, be pursues and kills tbe .offender, be commits murder. Tbe distinction rests on tbe greater tendency of seeing tbe passing fact than of hearing of it when accomplished, to stir tbe passions; and if tbe busband is not actually witnessing bis wife’s adultery, but knows it is transpiring, and, in an overpowering passion, no time for cooling having elapsed, be kills tbe wrong-doer, tbe offense is reduced to manslaughter.” 2 Bish. Crim. Law, (2d Ed.) sec. 708. Tbe law is tbat if tbe busband after learning of tbe defilement of bis wife waits and deliberates, and then kills tbe defiler, in so doing be commits tbe crime of murder. And if tbe fact had been proven that tbe appellant bad beard of tbe defilement of bis wife on tbe day before tbe homicide, it would not have constituted any justification for tbe killing, or a sufficient provocation to reduce tbe crime to manslaughter.

Tbe court charged the jury as follows: “If, however, you believe from tbe evidence tbat tbe defendant is not guilty of murder in tbe first degree, yet you are satisfied from tbe evidence beyond a reasonable doubt tbat tbe defendant did on the 28th day of November, 1886, at tbe county of Kane in tbe territory of Utah, unlawfully, willfully and maliciously, and premeditatedly, and without deliberation, shoot and kill tbe said Dobson in manner and form as charged in tbe indictment, your verdict should be that defendant is guilty of murder in tbe second degree.” By this language tbe defendant insists tbat tbe court described murder in tbe first degree, and tbat it was error to inform tbe jury tbat it constituted murder in tbe second degree. Tbe court said tbat if tbe killing was done willfully, maliciously and premeditatedly, and without deliberation, it was murder in tbe second degree. Tbe court evidently intended to qualify tbe meaning of the terms “maliciously, willfully, and premeditatedly,” by the use of the words “without deliberation.” Murder without deliberation means without sufficient thought to enable the person killing to form a distinct intention to kill. If it were conceded that the court defined murder in the first degree, and charged the jury that it constituted murder in the second degree, we would be unable to see how such an error could have prejudiced the defendant. Had the jury been misled by such a charge, it would have favored the defendant, by securing him lighter punishment. From the fact that the jury found the defendant guilty bf murder in the first degree it is apparent that the jury were not misled by the portion quoted of the charge.

Numerous other errors are alleged in the record, but we do not think them well taken. The judgment of the court below is affirmed.

Boremajt, J., and HENDERSON, J., concurred:  