APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Affirmed.
Mr. Greg Garcia, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Rouland W. Hill, County Attorney, for the State.
[39 Ariz. 305] ROSS, J.
The defendant, Jesus Macias, was convicted of murder in the first degree, and sentenced to life imprisonment. He has appealed, and assigns several reasons therefor. He asserts that the information fails to charge murder in the first degree, and that his conviction thereof should be set aside. The allegation in the information is that "Jesus Macias on or about the 5th day of November, A.D. 1930 . . .
did then and there wilfully, unlawfully and feloniously and with malice aforethought, kill and murder one Enrique Hernandez, a human being."
The contention is that the information, in order to charge first degree murder, should allege that the act of killing was "wilful, deliberate and premeditated"; that it is not enough to allege that it was "wilful and with malice aforethought." He bases this contention upon the language of section 4584 of the Revised Code of 1928 distinguishing the crime of murder into degrees. By that section, as we said in Solice v. State, 21 Ariz. 592, 193 P. 19, "it is divided into two degrees -- the first degree including all premeditated, wilful, and deliberate murder, and all killing done in the perpetration or attempt to perpetrate certain lesser crimes; the second including all other kinds of murder."
In the section of the statute (4583) immediately preceding the section distinguishing it into degrees, [39 Ariz. 306] the offense of murder is defined as "the unlawful killing of a human being with malice aforethought."
In Marquez v. Territory, 13 Ariz. 135, 108 P. 258, we laid down the rule that it is not necessary to set forth in an indictment for murder the means and manner of death. The form of the indictment in that case is not set out in the opinion, but we assume from what is said that the omission was of a statement of the instrument with which defendant killed the deceased. Since that case it has been common practice in this jurisdiction to omit from the information or indictment for murder a statement of the means and manner of death. The means used and the manner in which the killing is effected in many cases supplies the intent necessary to make out murder in the first degree, as where the killing is accomplished by lying in wait, or by poisoning, or in the perpetration of arson, burglary, robbery, rape or mayhem. These distinguishing features between murder in the first and second degrees are matters of evidence to be considered by the jury in determining whether the offense charged is of the higher or lesser degree. The means and manner of accomplishing the unlawful killing are important in determining the degree, but are not essential to a good indictment for murder in the first degree.
In Williams v. Territory, 13 Ariz. 306, 114 P. 566, the defendant was indicted for the crime of assault with intent to commit murder. The point was made that the indictment was defective in failing to allege that the assault was deliberate and premeditated. We said:
"'Murder is the unlawful killing of a human being with malice aforethought.' Section 172, Penal Code 1901. In charging murder, it is sufficient to allege facts showing the unlawful killing of a human being with malice aforethought without alleging in terms the degree, or facts which bring the murder within [39 Ariz. 307] one or the other of the statutory degrees. The jury then determines the degree of the crime from the evidence submitted to it. Davis v. Utah, 151 U.S. 262, 38 L.Ed. 153, 14 S.Ct. 328. The indictment here charges an assault made with intent unlawfully and with malice aforethought to kill a human being, and is sufficient."
In Rodriquez v. Territory,14 Ariz. 166, 125 P. 878, relied upon by defendant to sustain his point, it was said an indictment for murder in the first degree must charge that the killing was wilful, deliberate and premeditated, and with malice aforethought. But an examination of the case will disclose that such statement was unnecessary. In fact, in that ...