Legal Opinion

Aubrey v. State

Supreme Court of Arkansas

Decided May 2, 1896PublishedCited by 4 opinions

Appeal from Lafayette Circuit Court. ChareES W. Smith, Judge. 1. The omission of the word “wilful,” and the failure to state the degree, render the indictment defective and insufficient to charge murder in the first degree. 2 Bish. Cr. Pro., sec. 576; ib. secs. 571, 587; 29 Ark. 265; 34 N. H. 510; 97 N. C. 465; 60 Ark. 564; 27 Iowa, 402; 4 Green (Iowa), 415, 500; 27 Iowa, 415; 21 Kas. 43; 64 Iowa, 333; 1 Bish. Cr.

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Appeal from Lafayette Circuit Court. ChareES W. Smith, Judge. 1. The omission of the word “wilful,” and the failure to state the degree, render the indictment defective and insufficient to charge murder in the first degree. 2 Bish. Cr. Pro., sec. 576; ib. secs. 571, 587; 29 Ark. 265; 34 N. H. 510; 97 N. C. 465; 60 Ark. 564; 27 Iowa, 402; 4 Green (Iowa), 415, 500; 27 Iowa, 415; 21 Kas. 43; 64 Iowa, 333; 1 Bish. Cr. Pro., sec. 40, 43, 548, 503, 613; 618. 2. The verdict is not sustained by the evidence. The word “wilful” is necessarily included in the words '’‘‘with malice aforethought.” 11 S.…

1Opinion of the CourtWood, J.

The defendant was convicted of murder in the first degree, upon an indictment which charged that he “did unlawfully and feloniously, with malice aforethought, and with premeditation and deliberation, assault, kill, and murder one Rufus Harris by shooting him with a pistol, * * * with the felonious intent to kill and murder,” etc. Does the omission of the word “wilfully” render the indictment defective as a charge for murder in the first degree ? A wilful killing is an intended killing. Both the words “deliberation” and “premeditation” involve a prior purpose to do the act in question. And it…

2Cases cited3 opinions

  1. State v. SheltonSupreme Court of Iowa · 1884
  2. State v. TownsendSupreme Court of Iowa · 1885
  3. State v. StackhouseSupreme Court of Kansas · 1880

3Cited by4 opinions

  1. Harding v. StateSupreme Court of Arkansas · 1910
  2. Blevins v. StateSupreme Court of Arkansas · 1908
  3. Decker v. StateSupreme Court of Arkansas · 1934
  4. Tallman v. StateSupreme Court of Arkansas · 1921

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