State v. Morey

Opinion by

Mr. Justice Bean.

The defendant was convicted in the circuit court of Mu-ltnomah County of the crime of murder in the first degree in killing one Gus' Barry on the morning of the fifteenth of January, eighteen hundred and ninety-three, by shooting him with a pistol. The proof shows that previous to the homicide, the deceased, with his wife and Miss Wright, his sister-in-law, lived in a building in the city of Portland fronting upon and abutting Olay Street, containing three rooms, the one in front being occupied by the deceased and wife as a bedroom, immediately in the rear of which was the sitting-room, connecting with this room by double doors. In the rear of the sitting-room was another room, occupied by Miss Wright as a bedroom. The prisoner, who seems to have been a suitor of Miss Wright, was requested by her, two or three days before the homicide, at the suggestion of Mrs. Barry, to come and stay at the house nights, because the deceased *243 was' drinking, and it was feared he might assault and beat his wife, as he sometimes did when under the influence of liquor. On the night of the homicide the prisoner went to the house about half-past twelve or one o’clock in the morning, passing in from the street through an alleyway to the rear door, where he was admitted by Miss Wright, of whom he inquired if deceased was in, and, being answered in the negative, said, “ I will see for myself.” He then walked through the hall and across the sittingroom to the door of the bedroom of deceased and wife, who were both in bed, opened the door, and immediately thereafter the shooting occurred. It is disclosed from the defendant’s own testimony that up to the time he entered the room of the deceased nothing had occurred to arouse his passion or disturb his mind in any way. There is some slight variance between the evidence for the state and the defense as to what occurred after the prisoner entered the room, but it is of no consequence on this appeal. The court instructed the jury fully upon the various aspects of the case, and in so doing defined particularly and with care the deliberation and premeditation necessary to constitute murder in the first degree.

A short time after the cause was submitted, the jury returned into court, and through their foreman asked the following question: “Would the time which elapsed wdnle the defendant was going from the sidewalk into the room where the shooting took place be sufficient to give opportunity for deliberation and premeditation?” to which the court answered, “It would.” This is the principal assignment of error relied upon for the reversal of the judgment. The contention for the defendant is that,while no particular time is necessary for deliberation and premeditation, it was an invasion by the court of the province of the jury to tell them, as a matter of law, *244 under the facts of this particular case, that any fixed time would suffice for deliberation and premeditation on the part of the defendant. The argument is that while, as a conclusion of fact, the time occupied by the defendant in passing from the sidewalk to the room of the deceased may have afforded him sufficient time for deliberation and premeditation, although but a few moments elapsed, yet it cannot be so assumed as a matter of law, because its determination was peculiarly within the province of the jury under the evidence.

The crime of murder-in the first degree is defined by the statute to be the killing of a human being “ purposely and of deliberate and premeditated malice.” To constitute this crime, it is essential that the deliberate and premeditated design to kill must precede the killing by some appreciable length of time, sufficient for reflection and consideration upon the matter, and the formation of a definite purpose to kill, and it matters not how short the lime is if it is sufficient for that purpose. The rapidity of mental action is such that the formation of a design may not occupy more than a moment of time, and it is sufficient if it is formed and matured while the mifid is in its normal state, and under the control of the slayer, however brief the space of time may be. In this case it • affirmatively appears from all the evidence, both of the state and that of the prisoner himself, that during the time he was going from the sidewalk into the room of the deceased he was in possession of his usual faculties, and his mind was in its normal state, uninfluenced by passion or disturbed by any sudden and uncontrollable emotions, and under such circumstances we think it was not error to declare as a matter, of law that the time occupied in so doing gave him opportunity for deliberation and premeditation, and this is all the court declares in its answer to the question propounded by the jury. *245 The question did not call for, nor did the court by its answer intimate, any opinion as to whether there was deliberation and premeditation, but only that the time which elapsed after the defendant left the sidewalk was sufficient to give him as a sane man in a calm and deliberate state of mind, as the evidence shows him to have been, an opportunity sufficient for that purpose, leaving the question as to whether there was deliberation and premeditation for the jury to determine under the law as previously given them. Each of the other assignments of error have been carefully examined, but finding no error in the record we have no alternative but to affirm the judgment.

Affirmed.