David Josiah Brewer

“ Before a ruling is made which necessarily works out such a result, it should appear either that the statute gives an absolute right to the defendant to insist upon this preliminary filing, or else that the want of it would cause material injury to his defense. Neither can be affirmed. A preliminary examination is not indispensable to the finding of an indictment or a trial thereon; and, if the examination itself is not indispensable, it would seem to follow that no step taken in the course or as a part of it can be. ”

“ An act done with a depraved mind, attendant with circumstances which indicate a willful disregard of the rights or safety of others, indicates malice. 'Malice aforethought' is such wicked intention of the mind previously entertained.' Evidently, there is nothing in this of which the defendant can complain. ”

“ But, if they are, we find nothing in the charge of the court in respect to those matters which can be deemed erroneous. This was the definition of 'malice': 'The term 'malice' denotes a wicked intention of the mind. ”

“ Laws Utah, requires that the names of witnesses examined before the grand jury be indorsed on the indictment before it is presented. There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. ”

“ It appears that at the close of the testimony the defendant presented a body of instructions in 22 paragraphs, and asked the court to give them to the jury. They were marked 'Refused as a whole, except as given,' and the only exception to such refusal was in this language: 'The defendant excepts to the refusal of the court to give the instructions requested by the defendant, being numbered 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, and 21.' Such an exception is insufficient to compel an examination of each separate instruction. It is enough that any one of the series is erroneous. ”

“ Another assignment of error is that one of the jurors was permitted to act as interpreter. The record discloses that when Lauenberger was called as a witness one Fritz Lomax was sworn as interpreter. After the examination had proceeded a little while, defendant's counsel suggested that the interpreter was not correctly translating the answers of the witness; that the defendant had so informed him,-which statement was corroborated by one of the jurors. ”

“ Ct. 202, it was said: 'It was competent for the judge, under the statutes of Utah, to state to the jury 'all matters of law necessary for their information,' and consequently to inform them what those statutes defined as murder in the first degree and murder in the second degree. Laws Utah 1878, p. 120; Code Cr. Proc. §§ 283, 284.'
As to the other matters, we do not find in the charge any separate definition of the terms 'deliberation' or 'premeditation.' Probably counsel referred to the statement that such deliberation and premeditation need not exist for any fixed period of time ”