People v. Bonilla

Sanderson, J. delivered the opinion of the Court: The defendant was tried upon an indictment for murder in September, 1868, and convicted of murder in the first degree. The indictment charged that the homicide was committed “ with premeditation and with malice aforethought,” and the Court refused to give the following instruction : “In order to convict the defendant of murder in the first degree, under an indictment which alleges a premeditated design to effect the [700]death of the person killed, the premeditated design or express malice must be proved, although the act be also charged to have been done with malice aforethought. ”

A motion for a new trial was denied on the 30th of the same month, and on the same day judgment of death was rendered, to be executed, as therein provided, on the 28th day of November, 1868. On the 24th day of November, 1868, the Governor, by an order to that effect, suspended the execution of the judgment until the 8th day of January, 1869. Up to and on the 8th day of January, 1869, no warrant for the execution of the judgment had been issued, and on that day the District Attorney made application to the Court, showing the foregoing facts, and moved that the defendant be brought into Court for the purpose of enquiring into the matter. This motion was allowed, and the defendant was brought into Court, and, upon examination, it appearing that the judgment entered on the 30th of September was still in force, and that there was no longer any legal reason why it should not be executed, the Court made an order that the Sheriff should execute the judgment on the 28th day of January, 1869.

Two points are made in behalf of the appellant: First— That the refusal to give the instruction, which has been quoted above, was error ; and, Second—That the order of the 8th of January, 1869, was irregular and void.

The instruction was properly refused. Malice is of two kinds—express and implied—and either equally supports a verdict of guilty in the first degree; and this rule of law cannot be affected by an allegation in the indictment of express malice. Such an allegation is unnecessary, and, if made, need not be proved, in order to justify a verdict of guilty in the first degree. The proper allegation is of “malice aforethought,” .and malice aforethought is either express or implied. (Statute in Relation to Crimes and Punishments, Sections 19, 20, 21.)

The practice of designating in a judgment of death a day for carrying it into effect is not in keeping with the provisions of the Criminal Practice Act. The day should be designated in the warrant, and not in the judgment. Section