
    Solomon Shoemaker v. The State of Ohio.
    To constitute the crime of murder in the first degree, when the purpose to maliciously kill, with premeditation and deliberation is found, the length of time between the design so formed and its execution is immaterial.
    Where a person, indicted for murder, elects to be tried in the Supreme court, the original indictment must be sent up.
    But the clerk of the Common Pleas need not certify in the transcript that he has deposited the original in the office of the Supreme court; the fact may be shown aliunde. ,
    It is good cause of challenge to jurors, in a capital case, that they are not electors and householders; but it is no error that they are not described as such, in the record.
    This is an application for the allowance of a Writ of Error to the Supreme court of the county of Muskingum.
    The record shows the indictment of Shoemaker, at the last February term of the court of Common Pleas of said county, for the crime of murder in the first degree, and that he made his election to be tried in the Supreme court. It also appeárs from the record that at the last October term of the Supreme court in said county, on being arraigned, Shoemaker plead not guilty, to the indictment, was tried, convicted, as charged, and ordered for execution on the 12th day of January, 1844. Several assignments for error are made on this record—
    First: That the record does not show that the original indictment was deposited in the office of the clerk of the Supreme court, nor that the said original indictment was in or before said court;
    ' * Second : That the original indictment was not in or before the [44 Supreme court;
    
      Third : That the defendant pleaded to, the verdict was rendered, and judgment given on, a copy of the indictment;
    Fourth : That the record does not contain the original indictment, but only the copy thereof, certified from the court of Common Pleas;
    Fifth : That the record does not show that the jurors summoned by the sheriff, and the jurors who tried the case, had the qualifications required by the statute ;
    Sixth : That the court erred in the charge to the jury, as set forth in the bill of exceptions.
    The charge of the court, as stated in the bill of exceptions, is in these words :
    “ The law fixes no length of time, if the person has actually formed the purpose maliciously to kill, and deliberated and premeditated upon it before he performs the act; he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree; but the actual existence of such purpose, malice, deliberation, and premeditation, constitute the crime of murder in the first degree. It matters not' how short the time, if the party has turned it over in his mind, weighed, and deliberated upon it.”
    R. Stillwell, argued in behalf of Shoemaker.
    I am fully aware of the decisions in other States, and that they support the charge of the court; indeed, those m Pennsylvania go much beyond it. For instance,in the cases decided and reported by Addison, it is held, that if the intention to kill is formed before the act is done, it is murder in the first degree ; and in the ease reported in 2 Dallas, that the intention to kill determines the grade of crime. In the States of Pennsylvania and New York, although the statutes in each of those States, requires that, to constitute murder in the first degree, 45] * the act of killing must be deliberate and premeditated, yet an indictment, in the common law form (not containing the additional qualifications of bhe statute), will sustain a conviction of murder in the first degree. It is clear that neither of these decisions is law in Ohio. The court on the Circuit might not feel willing to depart from the decisions in the other States, (above referred to). • But, presented as this question now is, for the first time, to this Court in Bank, and as the decision of this case will form the law of the State under the present statute, I have no doubt but that the court will be willing to review the ground.
    
      The defendant is entitled to a strict literal construction of the statute in his favor. He can not be found guilty unless he come within the very letter. And I trust that the court will not consider my construction of the statute or of the charge of the court hypercritical, Murder in the first degree is defined in the first section of the act for the punishment of crimes. To constitute that crime, the act of killing must be both “ deliberate and premeditated.” An act may be premeditated, which is not deliberate,. And I submit that the decisions in the other States, and the charge of the court in this case, include and define a premeditated, but not a deliberate, act. The verb, “ to deliberate,” the substantive, “ deliberation,” and the adjective, “deliberate,” are not convertible terms.
    A man may deliberate — he may perform the act of deliberation, and yet the quality, deliberate, be not applicable to the act consequent on such deliberation. It is premeditated, but it is not of necessity deliberate. The act of deliberation may not be completed ; or, it may have been interrupted. I ask no better example to elucidate my meaning than the charge of the court, in this case. The words of the charge on this point, are : “ However short the time may have been between the purpose and the execution; ” and, “ it matters not how short the time.” An instant — an indivisible point of time, fills the requisition of the charge. The court, throughout the charge, say that the defendant is guilty of murder in the first degree, if he has deliberated; and that it is deliberation that determines the * grade [46 of the crimes — instead of saying, and explaining to the jury, that, in addition to this, the act itself must be deliberate. The words, weighed and “ turned it over in his mind,” in the latter part of the charge, make no difference ; they are. also qualified as to time, in the same manner as the part of the charge before referred to, and the same remarks are applicable.
    I claim that I have given a correct, philological exposition of the statute. Such is also the popular meaning. Did any man ever say that an act, done on the thought of the moment, was deliberate ? When we use that qualification we emphatically mean that all the grounds and circumstances have been coolly and carefully examined and balanced — again and again reviewed — the consequences of the act weighed, and a determination formed not likely to be changed by further examination. This can not, in any case, be performed in an instant — much less in the still less time specified in the charge.
    Such is the true meaning of the statute, as gathered from the words —such the popular meaning — and no doubt, the intention of the Legislature enacting the law. And in all cases of trial for murder, the jury should be so charged. It is true, that no exact time can be stated for the deliberation. This must depend on the circumstances of each particular case — certainly, in all cases, longer time than the infinitesimal portion of time dealt out in the charge ; and sufficient to meet the construction which I claim should be given to the statute.
    The view that I have taken is sustained by former charges of the Supreme court. State v. Town, Wright 77. In that case, the Court say, to "constitute murder in the first degree, the intention to kill must be coolly and deliberately formed.
    I deny that the words “ deliberation and premeditation,” in the second section, can be taken into consideration in giving a construction to the first section of the statute. ' The construction must be given from the definition of the crime itself.
    * N. A. Guille, Prosecuting Attorney, and Charles C. Convers, for the state.
    The exceptions taken in this ease, by the prisoner, leave but a single question for discussion, viz : “ Does time constitute the distinctive difference between murder in the first and second degrees, as known to our- statute ?'” Can time become more than a circumstance, which may be taken and weighed by the jury, with all the other circumstances of the case, in making up their opinion as to the actual existence of the fact of purpose, malice, deliberation and premeditation ?
    We hold that the deliberation and premeditation necessary, under our statute and in different states, to constitute the crime of murder in the first degree, means nothing more than the “ malice prepense,” or “ malice aforethought,” of the common law. People v. Enoch, 13 Wendall, 159. That this charge, to which exceptions are taken, would have been good at common law, admits of no doubt. Wherein does our statute make any distinctive difference? Is it more than declaratory of the common law ?
    The best method of arriving at its true meaning, is to have reference to the decisions of the judicial tribunals of the different states, where the same question has arisen, and where the true legal definition of the terms used in our statute are declared. First, then, in the state of Pennsylvania, since the act of 1794, as in our state, the whole doctrine of constructive murder, so called, ceased, so far as to involve the life of the accused ; such murders being nothing more than murder in the second degree. To constitute murder in that state, since the act above referred to, the killing must be “ with intent to take life, willful, deliberate, and premeditated.” Wherein does it differ from our own statute ?
    As early after the act of ’94, as the next year, a judicial construction was given to it by Chief Justice McKean and Judge Smith, in the case of The Commonwealth v. Mulatto Bob, where the court say : “ The intention still remains the criterion of crime. . That intention is to be collected from the words and * actions of the prisoner ; [48 and that on the supposition, a man, without uttering a word, should strike another on the head with an axe, it would be deemed premeditated violence.”
    At a later date, in the case of Commonwealth v. O’Hara, tried before C. J. McKean and Judges Shippen and Smith, at Philadelphia, in 1797, the Court held, “ If the murder be committed with an instrument likely to kill, it is willful, and that, to make it deliberate and premeditated, the party must have time to reflect and frame the design, however short the time may he. If the defendant .has time to think, and did intend to kill, for a minute, as well as an hour or a day, it is deliberate, willful, and premeditated killing.”
    The above authorities are referred to, and relied upon by Judge Rush, in the celebrated ease of The Commonwealth v. Smith, in 1816, •where the Judge remarks : “ But does the law fix the time for deliberation? No such thing. The truth is, in the nature of the thing, no time is, or can be, fixed by law for the deliberation necessary to constitute the crime of murder. If the party did reflect, though but for a minute, it is, unquestionably, sufficient. It is equally true, both in fact and experience, that no time is too short for a wicked man to frame in his mind a scheme of murder.” 2 Wheeler’s Oases, 84, 86. The same doctrine is more fully explained in the case of Commonwealth v. McGee, in 1826, by Judge King. 1 Ashmead, 299, 300 ; Commonwealth v. Dougherty, Browne, (appendix) 221. It is sufficient if the circumstances of willfulness and deliberation were proved, though they arose, and were generated, at the period of the transv action. Pennsylvania v. Fall, 1 Browne.
    The law, then, in Pennsylvania, is clear and conclusive on this point. Wherein, then, may we again inquire, can any essential distinction be made between the act of ’94, and our own statute, on this point? The two last cases, with others, are also cited and relied on, in the ease of The State v. Cheatwood, 2 Hill, (South Carolina), 464.
    In Yirginia, the Legislature, in their description of murder in the 49] first degree, at first enumerated some of the most striking ^instances of deliberate and cruel homicide; such as starving, whipping, poison, etc.; then go on, finding it impossible to enumerate all, and provide that murder, by any other kind of willful, deliberate, and premeditated killing, shall be murder in the first degree. Rev. Code, 616. Under that act: “ To constitute murder in the first degree,” it is said, “ it is not necessary that the premeditated design to kill, should have existed for any particular length of time. If, therefore, the accused, as he approached the deceased, and first came in view of him at a short distance, then formed the design to kill, and walked up with a quick pace, and killed him without any provocation, then, or recently received, it is murder in the first degree.” 6 Rand. 721 ; Whitford v. Commonwealth, Nov. 1828, Brockenborough, Judge. It may be remarked that this case went up, on exceptions from the court below, to the Court of Appeals, on exceptions similar to the case now under consideration.
    In the state of Tennessee, the point now at issue has received, in many instances, the consideration of their Superior Courts. The latest case is that of Anthony v. State, Meigs, 277, where it is held “ that, in the absence of passion or provocation, the length of time during which the prisoner deliberated, was immaterial. If the design was formed to kill, it would make no difference whether that design was deliberated upon but one moment, one day, or one week.”
    I-Iere, then, we have the concurrent construction of the courts of the different states, running back to a period of nearly fifty years, against the exceptions taken in this case, sustained, too, by a construction of our own court, in 1831, in the case of The State v. Turner, Wright, 30, 31, where it is said that the deliberation or premeditation necessary to constitute this offence, is not required to be of any particular length of time. “ If the design to kill was formed coolly but a moment before he struck the fatal blow, it is a premeditated killing.”
    It is unnecessary to enumerate the many reasons for the correctness of this construction, as they could only be a repetition of those col-50] lected in the cases above referred to, wherein the * question has received every consideration of which it was susceptible; but, it may be added, in addition to those authorities, that, by the provision of our statute, a killing on purpose, and maliciously, but without deliberation and premeditation, is murder in the second degree ; but if there is deliberation and premeditation — not how much, or how long did it last — not when was the purpose formed before the consummation of the act — but does the fact exist ? — was there any deliberation and premeditation ? If there was, it is murder in the first degree ; if there was not, but the ingredient of malice and purpose remaining, it falls to the second degree. The fact, itself, of deliberation and premeditation, is made the essence of the offence — the distinctive difference between the degrees of murder — and not the length of time during which that fact existed, So, then, we conclude that, in Ohio, under our statute, to adopt the more clear and explicit language and reasoning of the Judge who pronounced the charge in this case, “ the law fixes no length of time. If the porson has actually formed the purpose, maliciously to kill, and deliberated and premeditated upon it before he performs the act, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference, between murder in the first and second degree; but the actual existence of such purpose, malice, deliberation and premeditation, constitutes the crime of murder in the first degree. It matters not how short the time, if the party has turned it over in his mind, weighed it, and deliberated upon it.” What other meaning can be given to the act of the Legislature, consistent with justice, than to suppose that, in the adoption of the terms,-“deliberation and premeditation,” they meant to adopt their legal meaning; that meaning which the courts in England, and in this country, so far as we have any reported decisions, have always given them ? in fact, no other construction being at this day known. If they did not so mean that the jury, before finding a verdict of murder in the first degree, should be satisfied of the existence of the fact of deliberation and premeditation, and not its duration for a specific period, * this clause of the section would have [51 no definite meaning, and the crime of murder, in the first degree, could only exist when death occurs in the perpetration of rape, etc., or by poison.
   Wood, Judge.

The law upon which the first four assignments are based will be found in the 18th section of the act entitled “ an act directing the mode of trial in criminal cases.” Swan’s Stat. 725. The language is in these words : “ That if the prisoner elect to bo tried in the Supreme Court, the clerk of the court of Common Plea.? shall truly record the indictment, and forthwith make out a certified transcript of the same, with the proceedings of the court on such indictment, and deposit such transcript, with the original indictment, in the office of the clerk of the Supreme Court; which clerk shall docket the same ; and the Supreme Court shall proceed thereon to trial and judgment.”

It is only when the provisions of this act are complied with that the Supreme Court acquires jurisdiction of the case. State d. Turner, Wright, 33. And in a case involving life great caution is required, and parties are held to a strict compliance with the law. Idem. The original indictment must he sent up, for it is on that the prisoner must be arraigned; to it he must plead, and upon it must be tried. The reason why the indictment is to be recorded, and included in the transcript sent up of the other proceedings of the Common Pleas, is, perhaps, not very clear; but, probably, that it might be compared with the indictment, and show to the court that it was the same indictment on which the election was made to be tried in the Supreme Court.

The law requires the clerk of the court of Common Pleas to deposit the indictment in the office of the clerk of the Supreme Court; but it does not require the clerk of the Common Pleas to certify this fact in the record of the proceedings — for he is not required to deposit it until after the record is made, and then with the record.

An inspection of this record shows that no error has intervened, so far as these assignments are concerned. It appears the case was 52] docketed in the Supremo Court; and that the * court were satisfied the same indictment was there which is set forth in the transcript, and on which the election was made ; that the trial was upon it, and not on the transcript.

The record in the Supreme Court is in these words : “ The State of Ohio v. Solomon Shoemaker. Indictment for murder in the first degree. The prisoner being brought into court, and arraigned, etc., and the indictment being read to him, plead .not guilty, thereto.” The jury, in their verdict, say, that he is guilty,” etc.s “ as he, the said Solomon Shoemaker stands charged in the indictment.” It was, therefore, on the indictment that Shoemaker was tried and convicted, and not on the transcript or copy of the indictment. It docs, also, clearly appear, that the original indictment is copied into the record from the certificate of the clerk. Shoemaker, therefore, can take nothing from these assignments for error.

It is also assigned for error, that it does not appear from the record that the jurors had the qualifications required by law. The record describes the iurors as “ good and lawful men.” The statute requires them to have the qualifications of electors, and to be householders. Suppose the - jurors do not possess those qualifications, it is only a cause of challenge, and if waived by the accused, he can not avail himself of the objection on error. By such waiver he consents to their qualifications, and submits to be tried by them.

The sixth and last assignment, is, that the court erred in their charge to the jury.

A bill of exceptions was taken to the instruction of the court, from which it appears that the court charged the jury that the law fixed no length of time; if the person had actually formed the purpose maliciously to kill, and deliberated and premeditated upon it, before he performed the act, he was guilty of murder in the first degree, however short the time might have been between the purpose and its execution ; that it was not time that constituted the distinctive difference between murder in the first and second degree ; but the actual existence of Such purpose, malice, deliberation and premeditation, constituted murder in the first degree; that it mattered not * how [53 short the time, if the party had turned it over in his mind, weighed and deliberated upon it.

It is admitted by counsel, that the decisions in Pennsylvania sustain the charge, and even go far beyond it; for while the statutes of that state, to constitute murder in the first degree, require that the crime should be committed with deliberate and premeditated malice, an indictment in the common law form, merely, would there be sustained.

It is insisted the court erred in their charge in this case, in saying to the jury that however short the time may have been between the purpose and its execution, if the design were formed maliciously to kill, and deliberated and premeditated upon before the act was performed, it constituted murder in the first degree. It is said that a purpose or design may be premeditated, hastily formed, and executed so quickly, that time does not intervene for deliberation, and that without deliberation the crime of murder in the first degree is not complete ; and that, from the charge to the jury they may have supposed if the design was formed beforehand, it need not be deliberated upon.

We can not so understand the language of the charge ; but it is expressly said the jury must find the accused deliberated and premeditated upon it, that is, upon the formed purpose maliciously to kill, before he did the act. This language seems to us to satisfy the statute, ' and it would seem to make no difference whether the deliberation was in forming the' design maliciously to kill, or, in the continuance of such design after being formed, until the same was executed. The statute makes no distinction. The charge in this case is sustained by the case of the State v. Turner, Wright, 30; State v. Gardner, ibid. 399 ; State v. Thompson, ibid. 622.

On the whole, therefore, we are of the opinion the application for a writ of error should be refused.

Application refused.  