The indictment in this case is as follows:
"The Grand Jury of the County of Polk, in the State of Iowa, accuse Fred A. Woodmansee of Murder and charge that Fred A. Woodmansee in the County aforesaid wilfully, unlawfully, deliberately, premeditatedly, with malice aforethought, and with intent to kill, murdered W.F. Knapp."
The appellant moved the court to withdraw the charge of murder in the first degree. This was overruled. Error is based on this ruling.
Code Section 12910 is as follows:
"Whoever kills any human being with malice aforethought, either express or implied, is guilty of murder."
Code Section 12911 is as follows:
"All murder which is perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder in the first degree, and shall be punished with death, or imprisonment for life at hard labor in the *Page 623 penitentiary, as determined by the jury, or by the court if the defendant pleads guilty."
Code Section 12912 is as follows:
"Whoever commits murder otherwise than as set forth in the preceding section is guilty of murder in the second degree, and shall be punished by imprisonment in the penitentiary for life, or for a term of not less than ten years."
Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. But this is murder in the second degree under our statute, and not murder in the first degree.
In State v. Phillips, 118 Iowa 660-677, we said:
"Indeed, the great weight of authority is that proof of intentional homicide, without circumstances of mitigation or excuse, affords a presumption of malice, and therefore of murder; but that presumption is of murder in the second, not in the first degree. Dains v. State, 2 Hum. 439; 21 Am. Eng. Enc. Law, 163-170; 1 McClain, Criminal Law, 365. It is true we are permitted to infer that one who shoots and kills another intends the fatal result thus produced; but to go further, and say that, having thus found the intent, we may therefrom draw the inference of deliberation and premeditation is to make one inference the basis of another, which is a violation of the fundamental principles of evidence. U.S. v. Ross, 92 U.S. 281 (23 L. Ed. 707). The seventh instruction, above quoted, seems to go to the extent of holding that intent to kill necessarily implies deliberation and premeditation. Literally construed, it makes murder in the first degree of every intentional homicide. In this we cannot concur, for the intent to kill is not necessarily inconsistent with the crime of manslaughter or murder in the second degree. Hornsby v. State, 94 Ala. 55 (10 South. Rep. 522); State v. McGuire, 87 Iowa, 142; Erwin v. State, 29 Ohio St. 186 (23 Am. Rep. 733); State v. Henderson, 24 Or. 100 (32 Pac. Rep. 1030). This is not to deny the rule that where homicide has been intentionally committed, and there is shown to have been no combat, sudden quarrel, or other provocation inducing or explaining the criminal act, the jury may therefrom find deliberation and premeditation. In such cases, however, *Page 624 the finding of deliberation and premeditation is not reached from the intentional killing alone, but from such killing, together with the affirmative showing of an absence of all circumstances tending to indicate the lower degree of offense."
In State v. Leib, 198 Iowa 1315, we said:
"In a general way, murder is defined as the unlawful killing of a human being, with malice aforethought, either express or implied. Under our statute, murder is murder in the first degree if it has the additional element of premeditation and deliberation. Proof of intentional homicide, without the circumstances of mitigation or excuse, affords a presumption of malice, and therefore murder. The use of a deadly and dangerous weapon in a deadly and dangerous manner raises a presumption of malice, and therefore of murder; but in such instances, the presumption is of murder in the second, and not in the first, degree. State v. Phillips, 118 Iowa 660. The intent to kill may be inferred from the use of a deadly weapon in a deadly and dangerous manner; but it is not sufficient from this alone to draw the inference of deliberation and premeditation, for this would make one inference the basis of another, which, of course, cannot be done. State v. Phillips, supra."
The indictment in the case at bar charges murder in the first degree because of the allegation that the killing was done with premeditation and deliberation and intent to kill. It was therefore essential that the State prove premeditation and deliberation in order to establish murder in the first degree.
In State v. O'Donnell, 176 Iowa 337, we said:
"Section 4728 (now 12911) of the Code defines murder in the first degree to be, inter alia, any kind of `wilful, deliberate and premeditated killing.' To sustain the verdict, we must be able to find not only evidence of murder, but of additional elements which are as essential to convict of murder in the first degree, as is evidence that any murder was done. That this is so, is settled by our decisions that the indictment is not one for murder in the first degree if it charge no more than that the killing is merely wilful and premeditated (State v. Boyle,28 Iowa 522); that, in addition to charging that the assault was wilful, deliberate and premeditated, it must be charged that the *Page 625 blow constituting the assault was dealt with the purpose of killing (State v. McCormick, 27 Iowa 402; State v. Watkins,27 Iowa 415); that the charge of the specific intent to kill must not by the indictment be left to inference (State v. Linhoff,121 Iowa 632); and by our holdings that the proof must tend to show a specific intention to take life; that premeditation implies more than deliberation and means to meditate and deliberate before concluding to do the deed; that it means not only to take life wilfully, but to predetermine and to contrive by previous meditation (State v. Gillick, 7 Iowa 287, 311; State v. Johnson,8 Iowa 525; State v. Sopher, 70 Iowa 494; State v. Hockett,70 Iowa 442; State v. Shelton, 64 Iowa 333; State v. Perigo, 70 Iowa 657) . The existence of this intent cannot be presumed as a matter of law. State v. Carver, 22 Or. 602."
The record is entirely wanting in respect to any evidence whatever to show that the act of killing was done premeditatedly and deliberately as charged. The case comes squarely within the rule announced in State v. Phillips, supra, wherein we said:
"In such cases, however, the finding of deliberation and premeditation is not reached from the intentional killing alone, but from such killing, together with the affirmative showing of an absence of all circumstances tending to indicate the lower degree of offense."
In the instant case, there is an utter failure of any "affirmative showing of an absence of all circumstances tending to indicate the lower degree of offense."
When the State proved a killing by the use of a deadly weapon, malice might be inferred, and also that the fatal result was intended. This is murder. But it is murder in the second degree under our statute, and nothing more.
As is well said by Mr. Justice Weaver in State v. Phillips:
"But to go further, and say that, having found the intent, we may therefrom draw the inference of deliberation and premeditation is to make one inference the basis of another, which is a violation of the fundamental principles of evidence."
In the instant case we have nothing whatever to show deliberation and premeditation. Grant that the jury may have found under the evidence that appellant killed the decedent with *Page 626 a deadly weapon and with the intent to kill. This makes a case of murder, but of murder in the second degree only. When the State attempts to raise that offense to murder in the first degree because of a claim that the act was done premeditatedly and deliberately, it must prove that essential element of the higher crime by competent proof, not by conjecture, or by inference piled upon another inference. There must be proof to support a finding of the essential element of premeditation and deliberation. The killing with a deadly weapon does not alone furnish this proof. It may be conceded for the sake of the argument that premeditation and deliberation may be established by circumstantial evidence. It is not essential that there be an eye witness to the killing to furnish such proof. Previous threats, especially when followed by preparation or arming, may furnish evidence of premeditation and deliberation. It may be proven otherwise. There is not a suggestion of anything of the kind in this case.
The appellant moved the court to withdraw the charge of murder in the first degree. The motion should have been sustained because of an entire absence of any proof of premeditation and deliberation.
If the door of surmise and conjecture is to be opened, no one can tell whether or not there was a quarrel. No one knows who was the assailant, nor can anyone tell from the evidence what provocation may have induced the criminal act. In the absence of proof of premeditation and deliberation, first degree murder was not established.
II. It is contended, however, that the jury may have found that the killing was perpetrated by lying in wait, or in the perpetration or attempt to perpetrate a robbery.
The court instructed the jury as follows:
"As defined to you in Instruction No. 4, murder which is perpetrated by lying in wait, or any other kind of wilful, deliberate and premeditated killing which is committed in the perpetration or attempt to perpetrate robbery, is murder in the first degree. When murder — that is, the killing of a human being with malice aforethought is perpetrated by lying in wait, or any other kind of wilful, deliberate or premeditated killing which is committed in the perpetration or attempt to perpetrate a robbery, the law implies, because of the nature of the act, *Page 627 that it was done intentionally, wilfully, deliberately, premeditatedly, and with malice aforethought, therefore declares it to be murder in the first degree.
"As applied to the case under consideration, if, after considering as elsewhere instructed herein you find, beyond a reasonable doubt, that the defendant, Fred A. Woodmansee, struck the blow which caused the death of W.F. Knapp, and the said blow was struck by the said Fred A. Woodmansee while lying in wait, or in the perpetration or attempt to perpetrate a robbery on the said W.F. Knapp, then he would be guilty of murder in the first degree, and you will find him guilty and proceed to fix his punishment unless you find the defendant has established the defense of intoxication as elsewhere instructed herein, or if upon the whole record made in the case you have a reasonable doubt as to the guilt of the defendant as to either murder in the first degree or murder in the second degree, then it will be your duty to acquit the defendant."
Appellant took exception to said instruction and predicates error upon giving the same.
In the first place, the appellant was not charged with first degree murder because it was perpetrated by lying in wait or in committing a robbery. The State sought to raise the offense charged from murder to murder in the first degree by the allegation that the act was done with premeditation and deliberation. If the indictment had merely charged that the appellant murdered Knapp, without anything more, as might have been done under Section 33 of Chapter 266 of the Acts of the Forty-third General Assembly, it would have charged murder in the second degree, not in the first degree. It is also probably true that the State might have charged the appellant with the offense of murder in the first degree under the statute, and the appellant would have been entitled to a bill of particulars. But this indictment does not present such a situation. Here the charge is murder done with deliberation and premeditation and this makes a charge of murder in the first degree solely because of such allegation. This was in exact accord with the provisions of Section 2 of said Chapter 266, which is as follows:
"The indictment may charge, and is valid and sufficient *Page 628 if it charges, the offense for which the accused is being prosecuted in one or more of the following ways:
"(1) By using the name given to the offense by statute.
"(2) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense, or in terms of substantially the same meaning, as is sufficient to give the court and the accused notice of what offense is intended to be charged.
"The indictment may refer to a section or sub-section of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference."
The indictment did state so much of the definition of the offense murder in the first degree, to wit, premeditation and deliberation, as was sufficient to give the court and the accused notice of what offense was intended to be charged. The indictment did not attempt to charge murder in the first degree because of lying in wait, or in perpetrating robbery, or by means of poison, or in any other manner. It properly followed the statute and charged that the crime was murder in the first degree because it was done premeditatedly and deliberately.
Under such an indictment, could the jury convict of first degree murder if they found that the act was done by the administration of poison? The State chose its ground to make the offense murder in the first degree by alleging premeditation and deliberation. This it did "in terms * * * of the statute defining the offense," exactly as the statute, Ch. 266, Acts of the Forty-third General Assembly, provides. Suppose the indictment has alleged that the killing was done by administering poison, and there was no proof whatever of poison, could the court submit to the jury the question of whether or not the killing was done in an attempt to commit arson? In the instant case, the State having charged that the act was done premeditatedly and deliberately, cannot change front upon submission to the jury and claim first degree murder because of the administration of poison or the attempt to commit mayhem. Neither can it rely upon the uncharged claim of lying in wait or attempted robbery.
The "Short Form of Indictment" statute was intended to and does simplify criminal procedure, and eliminates the ancient *Page 629 and cumbersome allegations that characterized the prolix indictments formerly in vogue; but the statute does not contemplate that the proper and necessary allegations of an indictment shall be a camouflage under which a defendant may be tried for an offense not referred to in the indictment or covered by any bill of particulars.
The court erred in giving Instruction No. 10.
III. Furthermore, there is no evidence upon which to support a finding that appellant was guilty of either lying in wait or robbery, actual or attempted.
In State v. Cross, 68 Iowa 180-200, we said:
"The court gave an instruction in these words: `If the evidence is such as to satisfy you that the defendant lay in wait for the said McKune, or sought an opportunity to get into an altercation with him for the purpose of killing him; that he armed himself with a revolver to carry out that purpose, and, at the time and place in question, shot the said McKune, — the defendant's act in so doing was unlawful and criminal.' It is said that there was no evidence upon which the instruction could properly be based. We think that the ordinary meaning of lying in wait, as the term is used in law, is lying in ambush or concealment. See Bouv. Law Dict. There was no evidence of any concealment on the part of the defendant, and we think that the instruction should not have been given."
So in the case at bar, there is not the slightest evidence that the appellant was lying in ambush or concealment. No one knows when or how he entered Knapp's rooms. It will not do to say that "he may have been hiding in Knapp's room." As well say he may have walked boldly and openly into Knapp's room and assaulted him. Either is wholly conjectural. The fact that he sat in a public hotel lobby across the street where he could look up at the windows of Knapp's rooms some time before the killing is no evidence of concealment to commit the assault.
In State v. Tyler, 122 Iowa 125, we said:
"`Lying in wait' means hiding in ambush or concealment. State v. Cross, 68 Iowa 180. It does not necessarily refer to the attitude of the body, but rather to its location, and the purpose of taking the person attacked unawares. It is the mental *Page 630 poise of the wild beast in quest of prey, and necessarily implies malice, premeditation, deliberation, and the willful intent."
Other courts apply a similar definition to the term "lying in wait". It must necessarily imply ambush or concealment. See Bouv. Law Dict.; Patterson v. State, 191 Ala. 16 (67 So. 997); People v. Miles, 55 Cal. 207.
Even if the question were in the case there is no evidence whatever upon which to base a finding that appellant was "lying in wait."
IV. Likewise, there is no proof that appellant was perpetrating or attempting to perpetrate any robbery. It is true that decedent's keys were found in appellant's overcoat pocket, but when or how they came there is unknown. There is not one iota of evidence that appellant attempted to rob the decedent Knapp. He had no money when searched except ten cents, and there is no claim that that belonged to Knapp. There is more evidence that appellant was attempting to perpetrate mayhem than that he was attempting robbery. Knapp was mutilated and terribly wounded. Why did not the court submit attempted mayhem as well as attempted robbery as a basis for a finding of murder in the first degree? The court erred in submitting lying in wait and attempted robbery for two reasons: (1) there was no allegation of either in the indictment; and (2) there was no evidence of either in the record.
A dastardly, outrageous, and shocking crime has been committed. The perpetrator should be amply punished as provided by law. No more grave, serious, and responsible duty can devolve upon a court than to pass upon the legal rights of one whose life is in jeopardy. No matter how heinous the offense or how merited punishment may be, our bounden duty is to declare the rules of law, without sympathy and equally without a spirit of revenge. In the discharge of this solemn and unenviable duty we have but one guide and that is to discover and pronounce the correct rules of law applicable to the case. In so doing, we see no escape from the conclusion that the trial court erred in the particulars herein set forth and by reason of such errors the case should be reversed. *Page 631