John Smith v. The Republic, 1 Dallam 473

JACK, Justice. The appellant, John Smith, was at the fall term of the District Court for Liberty County indicted and tried for the murder of James West. Upon the trial in the district court the defendant’s counsel moved the court to instruct the jury “that the indictment was, as it was framed, an indictment for manslaughter only and not for murder,” which instruction the court refused, and charged the jury “that it was an indictment for murder, and that upon the bill the defendant might be convicted of murder.” To this opinion of the court the defendant by his counsel excepted.

The only question which we deem it necessary to determine in this case is,.was this indictment for murder or manslaughter? The second

section of the act punishing crimes and misdemeanors provides “that every person of sound mind and discretion, who shall willfully and maliciously kill any person, shall be deemed guilty of murder,” etc.

The indictment before us was framed under this statute, and containing the usual requisites, concludes with these words, “and so the jurors aforesaid upon their oath aforesaid do say, that the said John Smith, him the said James West in the manner and by the means aforesaid, feloniously, .willfully and maliciously, did kill and murder.” It was well settled that an indictment under a statute must follow and conform to the statute in stating the offense. The indictment before us we think is strictly in accordance with the provisions of the statute before alluded to.

It is an indictment for murder, and the judge did not err in his charge to the jury. The judgment of the district court is therefore affirmed. Affirmed.