MR. JUSTICE CLIFFORD dissenting.
Murder is the charge preferred against the prisoner, which, at common law, is defined to be, when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and in the peace of the State, with malice aforethought, either express or implied. Modern statutes defining murder in many cases affix degrees to the offence, according to the nature and aggravation of the circumstances under which the act of homicide is committed.
Offences against the lives and persons of individuals are defined by the statutes of Utah, as follows: Whoever kills any human being, with malice aforethought, the statute of the Territory enacts, is guilty of murder; and the succeeding section of the same act provides that all murder perpetrated by poison or by lying in wait, or by any other kind of wilful, deliberate, and premeditate killing, or which is committed in the perpetration, or attempt to perpetrate, any one of the offences therein enumerated, is murder of the first degree, and shall be punished with death. Laws Utah, 51, c. 21, tit. 2, sects. 4, 5.
Pursuant to that enactment, the grand jury of the third judicial district, in due form of law, preferred an indictment against the prisoner for the murder of John Kramer, charging that he, the prisoner, did, at the time and in the manner and by the means therein described, feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought, kill and murder the deceased, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the United States resident in the said Territory.
Sufficient appears to show that the prisoner was arraigned in due form of law, and that he pleaded to the indictment that he was not guilty, as required by the statute of the Territory; that, material witnesses for the prisoner being absent, the indictment was on his motion continued to the next term of the court. Both parties being ready at the succeeding term of the court, the jury was duly impanelled, and sworn well and truly to try the issue, as provided by law. Witnesses were called and examined by the prosecution and for the defence, and the cause was regularly committed to the jury having the prisoner in charge.
None of these proceedings are called in question; and it appears that the jury retired, and, having duly considered the case, returned into court, and gave their verdict that the prisoner is guilty of murder in the first degree. Sentence in due form of law was rendered by the court, as more fully appears in the record; and the prisoner excepted to the rulings and instructions of the court, and appealed to the Supreme Court of the Territory, as he had by law a right to do, where the judgment of the subordinate court was affirmed. Laws Utah, 66, c. 31, sect. 5.
Error lies from that court to the Supreme Court in criminal cases, where the accused has been sentenced to capital punishment; and the record shows that the prisoner sued out a writ of error, and removed the cause into this court. 18 Stat. 254.
Four errors are assigned in the transcript: 1. That the court erred in affirming the judgment of the District Court. 2. That the court erred in holding that the affidavit offered to procure a continuance was insufficient. 3. That the court erred in sustaining the ruling of the District Court, that the uncommunicated threats of the deceased, made in connection with the exhibition of a pistol a short time before the homicide, were inadmissible in evidence to the jury. 4. That the court erred in overruling the exceptions of the prisoner to the instructions given to the jury by the District Court.
Two of the errors assigned-to wit, the second and fourth having been abandoned here in the argument for the prisoner, the re-examination of the case will be confined to the third assigned error, as the only remaining one which deserves any special consideration.