Fitzgerrold v. People

The prisoner alleges that the indictment charges only the offence of murder in the second degree. It does not allege that the killing was from a premeditated design to effect the death of any human being, nor that it was perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, nor that it was perpetrated in committing the crime of arson in the first degree. The killing is charged to have been by “ wilfully, maliciously, and of malice aforethought ” shooting the said Ellen Hicks upon her body, and inflicting upon her a wound from which she speedily died. This, the prisoner insists, is a charge of murder in the second degree only, and that the sentence and judgment, rendered upon a general verdict of guilty, are erroneous.

The killing of any human being, without the authority of law, is declared by the Revised Statutes (omitting the distinctions in reference to manslaughter and excusable or justifiable homicide) to be “ murder ” in the following cases:

1. When perpetrated from, a premeditated design to effect the death of the person killed, or of any human being;

2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual;

3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony (2 R. S. 657, § 5).

The case of The People v. Enoch arose soon after the passage of these statutes ( 13 Wend. 159 ). Enoch was indicted for murder, upon a charge that on, &c., he did with force and arms, “ feloniously, wilfully, and of his malice aforethought,” shoot and kill his wife, Nancy Enoch. He was convicted and sentenced to be hung. Hpon a writ of error brought, it was insisted by his conn

In the Court of Errors (at p. 173, et seq.) the Chancellor reiterates these views at length, and concludes by saying: “ From this examination of the subject I have arrived at the conclusion that a common law indictment for murder is proper, under the provisions of the Revised Statutes; and a Defendant cannot be convicted on such an indictment of a felonious homicide with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder ” (p. 176). In The People v. White ( 24 Wend. 520 ) the late Court of Errors held, that when an indictment charged the killing to be feloniously, wilfully, of malice aforethought, and from a premeditated design to effect death, the premeditated design or express malice must be proved, but affirm and approve the case of Enoch. In The People v. Clark, decided in this Court in 1852 (3 Seld. 385, 393), Johnson, J., uses this language: “ The words premeditated, aforethought, and prepense, possess, etymologically, the same meaning; they are, in truth, the Latin and Saxon synonyms, expressing a single idea, and possess in law precisely the same force. The statute, so far as this term is concerned, has not altered the law. Malice prepense, however, had attained a broader meaning than belongs to the term premeditated design. The intent to take life was not necessary to

In 1862 (Laws 1862, eh. 197, p. 369) the law on the subject of murder was re-enacted,' and was altered in its third subdivision. By the Revised Statutes, as already quoted, it was provided that the killing should be murder in the cases specified, of which the last was as follows: “ 3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony.” By the statute as altered it was made to read as follows: “ 3. When perpetrated in committing the crime of arson in the first degree. Such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, as hereinafter provided, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree.” By this amendment, a killing when perpetrated in committing the crime of arson in the first degree, still constituted the offence of murder in the first degree. When, however, the killing was perpetrated without any design to effect death, by a person engaged in the commission of a felony, other than that of arson in- the first degree, it was murder in the second degree only. This was the entire effect of the amendment of 1862. This section is obscure, and has been generally read as if the words “ or when perpetrated without any design to effect death, by a person engaged in the commission of any felony,” formed an exception, like the words “ or' manslaughter,” or “justifiable homicide.” Upon this construction no crime of murder in the second degree is created. The very crime intended to be thereby created, is by this construction declared not to be such crime. A more reasonable construction should be put upon the language, and effect given to the evident intention of the Legislature. The statute may be thus paraphrased: The killing of a

The punishment of murder in the second degree is fixed, by section seven, as an imprisonment in a State prison for a period of not less than ten years.

The construction which I have given to this statute is confirmed by the subsequent provisions of the statute, on the subject of manslaughter. This offence in the first, second, and third degrees, is defined by the statutes, and the punishment is fixed at confinement in the State prison, for periods ranging from two to seven years. The nineteenth section of the statute provides that every other killing of ahúman being shall be deemed to be manslaughter in the fourth degree. The punishment of this offence is by imprisonment in a State prison for two years, or by imprisonment in a county jail not exceeding one year, or by fine not exceeding $1,000, or by both such fine and imprisonment.

It has been suggested that the killing of a human being, when perpetrated without a design to effect death, by a person engaged in the commission of a felony, might be punished within the terms of section nineteen, and that constitutes the offence of manslaughter in the fourth degree. This would be quite unwarrantable, when we consider the very slight degree of punishment in

The prisoner’s argument, in legal effect, is this: that he is charged by the indictment with an offence which may be found by the jury to be either murder in the first degree, or murder in the second degree; that the jury have found a general verdict only against him ; that this may have been founded upon facts which would justify a conviction of the minor offence only, and that therefore a judgment based upon a verdict as for the greater offence is erroneous. This argument I do not consider sound. In the People «.Enoch (supra), it was charged that the Defendant killed his wife feloniously, and of malice aforethought, the words, “ with premeditated design,” being omitted. The law had then been so altered by the Revised Statutes, that a killing which occurred in commission of a misdemeanor simply, was not murder. It would be manslaughter merely. Malice aforethought embraced a class of offences which did not then constitute the crime of murder. The prisoner then stood indicted for an offence which might be murder, or might be an inferior offence, and yet upon a general verdict of guilty, and a judgment inflicting the punishment of death, the Court of Errors sustained the judgment. The Chancellor gave the answer which I have already cited, “ that it is the duty of the Court to see that a proper direction be given to the jury in point of law upon the evidence, and if either Court or jury err, the appropriate remedy must be sought.” Ho objection is taken to the charge of the Judge in the present case, and we are to assume that the Judge explained to the jury the law of murder in its different degrees, and the law of manslaughter, as defined by the statute, and that the jury rendered an intelligent verdict upon such understanding of the statutes. If this case had contained the charge of the Judge, in which it had been stated that to con

It has always been held to be the law, that upon an indictment charging the offence of murder, and nothing else, the prisoner might be convicted of manslaughter. The same allegations in the indictment would maintain a conviction for murder, or would justify a verdict of manslaughter merely. The result depends upon the proof, the direction of the Judge, and the opinion of the jury. As these elements require a conviction of the greater or minor offence, such will be the result. As the same elements require a conviction of murder in the first degree, or of murder in the second degree, such will be the result.

The case of Enoch has stood as the law on this subject for more than thirty years. To overrule it would be a rash overthrow of a settled -authority, under which many persons have suffered the extreme penalty of the law. The objection on which the prisoner’s argument is based, is purely technical; it is not even suggested that the law was not accurately explained to the jury, or that his rights were not properly guarded.

The judgment should be affirmed.

The Plaintiff in Error was indicted, tried, found guilty, and sentenced to death, at the Court of Oyer and Terminer, for the county of Westchester. By writ of error the judgment was brought under review at the General Term of the Supreme Court for the Second District, and was there affirmed; and the Court thereupon appointed a day for the execution of the sentence.

The indictment charged that the Plaintiff in Error, feloniously, wilfully, and of malice aforethought, made an assault upon one Ellen ITicks, with a gun, charged with gunpowder and bullet, which he held in his hands, and at and against the said Ellen ITicks, did feloniously, wilfully, and of his malice aforethought, shoot off and discharge, and with such bullet, by means of the shooting off and discharging the said gun, the said Eitzgerrold did, then and there, feloniously, wilfully, and of his malice aforethought, strike, penetrate, and wound the said Ellen Hicks, giving to her * * one mortal wound, * * of which said mortal wound, the said Ellen Hicks did, then and there, soon after die. -x- -x -x And the jurors aforesaid, * * say, that the said Eitzgerrold, her the said Ellen Hicks, in the manner and by the means aforesaid, feloniously and of his malice aforethought, did kill and murder. * * *

It is insisted, on behalf of the Plaintiff in Error, that the offence of murder in the first degree is not charged in the indictment, and that therefore a verdict of guilty does not warrant a judgment condemning the Plaintiff for that offence.

In 1834, the Court of Errors of this' State, in The People v. Enoch ( 13 Wend. 159 ), by an unanimous opinion, affirmed the judgment of the Supreme Court, which held that an indictment charging the act to have been committed feloniously, wilfully, and of malice-aforethought, was a sufficient charge of murder in the first degree, although the Revised Statutes then defined murder as a killing in the following cases :

1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.

2. When perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

3. When perpetrated without any design to effect death, by a

The present statute (Laws of 1862, p. 369, ch. 197) defines murder in the first degree in the same terms, except that the third subdivision reads, “ when perpetrated in committing the crime of arson in the first degree.”

Under the indictment above mentioned Enoch was convicted of murder, sentenced to be hung, and the conviction and judgment thereon were sustained.

The ground was distinctly taken, and ably and elaborately argued, that the charging the act to have been with malice aforethought, was not a sufficient description of a killing with a premeditated design, and that therefore the conviction should not be sustained. And the precise argument now urged upon us was there earnestly pressed, viz.: that “ had the accused, on his arraignment, pleaded guilty to the charge, the Court would not have known what judgment to pronounce ”—i. e., whether the punishment of murder in the first degree, death; or of manslaughter, imprisonment in the State prison.

The Court were of the opinion and held, .that the statute had not changed the form of pleading or the requisites of an indictment. That the words, “with malice aforethought,” include express malice, which is all that is expressed or intended to be expressed by “ premeditated design,” and are legal and appropriate language to express it. The opinion of the Chancellor in the Court of Appeals was, that murder being a common law offence, and the law having adopted certain technical expressions to define the offence, the crime must be described in tije indictment, or the intention be expressed in those technical terms, and no other. And that therefore in an indictment for murder, the terms murder, of his malice aforethought, are considered absolutely necessary, and without them it would be deemed a case of manslaughter.

This case clearly and necessarily sustains the indictment now in question. It holds that the statute has introduced no new rule of pleading to describe a killing with premeditated design; that the Court, on the trial, must instruct the jury as to what

The decision in The People v. Enoch was affirmed by the Supreme Court in The People v. White ( 22 Wend. 167 ). There the pleader, in order to avoid question, had added to the charge of killing “ with malice aforethought,” the words of the statute— “ and from a premeditated design to effect his death,” &e. The Supreme Court held that these latter words were unnecessary and mere surplusage. That the other words, being in the form of a common law indictment, let in proof of any species of murder as defined by the section of the statute. Hence, that the words “with premeditated design,” &c., might be rejected or disregarded.

The Court of Errors ( 24 Wend. 520 ) held that the pleader, by introducing the words “ with premeditated design,” &c., had adopted them as descriptive of the specific act charged, viz.: the description in the first subdivision of that section of the statute which defines murder, and as matter of description he had made them material. But the opinion of the Court showed that the words were not necessary to the validity of the indictment, and so far from retracting or reversing the decision of the same Court in The People v. Enoch, language of direct affirmance is used in the opinion. Thus (p. 580): “ Since the decision in the case of Enoch by this Court, no doubt can be entertained that a common law indictment, charging the offence to have been committed of malice aforethought, would be good for either of the offences described in the first or second subdivision of the section. Had the indictment been so drawn, and without the words with premeditated design,’ &e., no doubt could be entertained that the charge of the Court to the jury would have been correct, and the conviction good.” (P. 571): “ It is true that, according to the reason of the thing, as well as the decision of this Court in The People v. Enoch, a general count charging murder with malice aforethought, would be sufficient, and would be sustained by evidence of any sort of murder whatsoever within the statutory definitions.”

In The People v. Clark, in this Court ( 7 N. Y. 385 ), no question arose on the form of the indictment. The inquiry was, what degree of deliberation was essential to constitute premeditated design; but in the discussion, Hr. Justice Johnson says that the words “ premeditated, aforethought, and prepense, possess, etymologically, the same meaning, and are * * synonyms, expressing a single idea, and possess in law precisely the same force.” But as “malice prepense” had obtained a broader meaning than belongs to “premeditated design,” the statute required, in order to a conviction of murder under the first subdivision, the existence of an actual intention to kill. The existence of such intention must therefore be proved on the trial, to sustain such an indictment under the first subdivision.

1 The result of these cases most clearly is, that the crime of murder is sufficiently charged, when alleged, as in the present indictment, “ with malice aforethought.” But, in order to prove the crime, the proofs must establish a case within the requirement of the statute in one of its three subdivisions. And the party indicted is entitled to proper instructions to the jury as to what facts must be found to sustain the indictment. And a verdict of guilty, as charged in the indictment, is a finding of guilty of murder in the first degree; and judgment thereon, and condemnation to the punishment awarded to that crime, necessarily follow.

I find no reason for departing from these views of the law. If I doubted their accuracy, I should hesitate in disturbing cases which have been the guide of public affairs and the test of Court pleadings for more than thirty years, unless I saw that some wrong was done or some evil was created by continuing a form

I have, however, no doubt on that subject. I think the decision in The People v. Enoch founded in good sense and correct in law, and that it is decisive in the case before us.

In a case in which the questions raised involve the life of a human being, I was disposed to consider carefully what could be urged by the counsel for the Plaintiff in Error, although the case did not seem doubtful; but the result of such consideration is, that the judgment must be affirmed.

The prisoner was indicted for the crime of murder, at the Court of Oyer and Terminer in the county of Westchester. The indictment is in the old common law form, and is precisely like the form in the case of The People v. Enoch ( 13 W. R. 159 ). It charges that the said Thomas Fitzgerrold, feloniously, wilfully, and of his malice aforethought, did kill and murder Ellen Ilicks, by shooting her through the body with a leaden bullet, 'discharged from a musket in the hands of the said Thomas Fitzgerrold, &c.

The prisoner was tried upon said indictment, at the Westchester Oyer and Terminer, in 1867; and the jury returned a general verdict of guilty, and the Court sentenced the prisoner to be hanged; and thereupon the prisoner procured a writ of error, and removed the case to the Supreme Court, where the judgment was affirmed; and the prisoner then removed the case into this Court, by writ of error, and now claims and insists that the judgment should be reversed, for the reason that the verdict of the jury upon the indictment did not find the' prisoner guilty of murder in the first degree; or at least the Court were not justified in sentencing the prisoner to the punishment of death upon the verdict; and the question raised brings under review both the indictment and the verdict of the jury thereon. The rule in

There is no doubt in my mind but this indictment, upon well-settled principles of law, charges upon the Defendant the crime of murder in the first degree, and the jury having found a general verdict of guilty, it became the duty of the Court of Oyer and Terminer to pronounce the judgment which they did.

The fact of guilt being ascertained and declared by the jury, the Court must determine the punishment which the law prescribes for the offence. The point made by the Defendant against the conviction and judgment in this case is, that the verdict of the jury does not find the Defendant guilty of murder in the first degree, because they have only found him guilty of the offence charged in the indictment; and that because the indictment does not charge that the killing was perpetrated from a premeditated design to effect the death of the person killed, the offence of murder in the first degree is not found by the verdict. There are several answers to this objection. In the first place, it is a settled rule of the common law that the killing of a human being is unlawful, and primá facie murder (Foster’s Crown Law, 253). The killing is presumed in law to be felonious and malicious until the contrary is shown in evidence, and the burden is upon the Defendant to prove it (4 Black. Com. 201; 3 Chitty’s Cr. Law, 730 ; Barbour’s Cr. Treatise, 25); and consequently the general rule of pleading at common law is, that in the crime of murder it is not necessary to aver, “ in hsec verba,” the particular intent. It is also a rule of pleading in criminal cases, that presumptions of law need never be averred (4 Maul. & Selw. 105 ; 2 Wils. R. 147; Barb. Cr. Tr. p. 77).

Mor is it necessary in the indictment to aver conclusions of law. It is sufficient to state the facts, and the Court will draw the inferences (2 Leach, 941; Barb. Cr. Tr. 277).

As a general rule in criminal cases, intention can be but a matter of presumption, arising either from the facts stated in the

It cannot be doubted that this indictment embraces the charge of a killing in express malice, or from a premeditated design to effect the death of deceased. But it is said that the charge in this indictment also embraces a lower grade of offence, to wit, implied malice, and may apply to that, and, consequently, a general verdict of guilty does not necessarily convict the prisoner of the higher offence of killing from a premeditated design to effect the death.

The answer to this is, that a general verdict of guilty has always been held to convict the prisoner of the highest offence charged in the indictment; and although lower offences were charged in the indictment, yet the Court, on a general verdict of guilty, might lawfully sentence the prisoner for the highest offence implied. This rule was expressly sanctioned by this Court where I applied the rule in the Oyer and Terminer, in the case of The People v. Conkey et al., and sentenced the prisoners for the highest offence charged. In that case there was a general verdict of guilty.

There is little propriety, however, in discussing this case upon general principles, as the whole question was decided in the case of The People v. Enoch ( 13 W. R. 159 ). That case decides what was familiar and well known to every criminal lawyer before, that the third subdivision of § 5, 2 R. S. 657, was but a re-enactment of the common law definition of murder, so far as

They did strike down a class of homicides that at common law was held to be constructive murder, where there was no intent to kill, and threw them into a lower grade of manslaughter; yet so far as they retained the crime of murder, it was hut a reenactment of the common law upon the subject. The opinion of Judge ¡Nelson in the Supreme Court, in the case of The People v. Enoch, above referred to, and also the opinion of the Chancellor in the Court of Errors in the same case, is very clear and satisfactory upon this subject, and is unanswerable to show that a common law form of indictment, like the one in the present case, is good under the statute, and would justify the imposition of the death penalty upon a general verdict of guilty under it.

It only remains to see whether the statute definition of murder in the first degree, as embraced in our present statute, has changed this rule. This statute was passed April 12, 1862, and is a literal copy of the 5th sect., 2 B. S. 65J, while the statute definition of murder in the B. S. is only changed in the 3d sub. They have limited the cases embraced therein to a homicide committed while engaged in the commission of the crime of arson in the first degree, whereas before it embraced all unjustifiable homicides committed while engaged in the commission of a felony.

There is no pretence, and can be none, that this 3d sub. has anything to do with the case under consideration. It follows, therefore, that the case of The People v. Enoch is a controlling authority under our present statute. But it may be said that this act of April 12th, 1862, creates a new offence of murder in the second degree. Be it so. Murder in the second degree, as defined in that act, does not embrace any case that was not murder under the Bevised Statutes. This, it seems to me, is very clear. This act of 1862 does not propose in any manner to interfere with manslaughter in any respect, as the same is defined in

The result of the amendment of 1862 is to leave the first and second subdivisions of this 5th section embraced in the Revised Statutes, murder in the first degree; and when the homicide occurs without a premeditated design to effect death, by a person engaged in the commission of arson in the first degree, such killing is murder in the first degree.

How, it must be borne in mind that our Revised Statutes, in their provisions as to murder and manslaughter, in the four degrees specified in the statute, embraced every conceivable case of unjustifiable homicide. As this act of 1862 leaves every degree of manslaughter, as defined in the Revised Statutes, wholly unmolested, it would seem to follow that murder in the first and second degrees, as embraced in this act of 1862, cam only embrace those cases that were murder under the Revised Statutes. As this act of April 12, 1862, is explicit in its definition of murder in the first degree, and makes it embrace all the cases included in the first and second subdivisions of the 5th sec., 2 R. S. 657, and one class embraced in the third sub., to wit, when the killing occurs when engaged in the commission of arson in the first degree, it would seem to follow that the framers of this statute must have intended that all that class of cases thrown out of this third sub. of murder, as embraced in the R. S., should fall into the definition of murder of the second degree. This must be the construction of this act of April 12, 1862, otherwise there is no such thing as murder in the second degree, for no case is left for the statute to operate upon. If murder in the second degree does not embrace this class, there is no such thing as murder in the second degree under this statute.

It does not embrace murder in the first degree, for that is expressly excluded. It does not embrace manslaughter in any of

The language of this 5th section of the act of April 12, 1862, so far as it attempts to make a definition of-murder in the second degree, is extremely ambiguous; but it is susceptible of being read to the effect above indicated, and I am of the opinion that such was the intent of the framers of this statute.

If I am right in the views above expressed, it follows that the conviction and judgment were right, and should be affirmed.

(dissenting).—This is a writ of error, directed to the Supreme Court in the Second Judicial District, bringing up the record of an indictment, conviction, and sentence of the Plaintiff in Error, and which had been removed into that Court by writ of error to the Court of Oyer and Terminer, in and for the county of Westchester.

The substantive allegation in the indictment, on which the question was presented below, and in this Oourt arises, is, that “ Thomas Fitzgerrold, feloniously, wilfully, and of his malice aforethought, did kill and murder Ellen Hicks, by shooting her through the body with a leaden bullet, discharged from a musket,” &c.

■ Upon this indictment he was brought to trial before the Westchester Oyer and Terminer, in December, 1866, and the record states that the jury, in returning their verdict, “ say that they find the said Thomas Fitzgerrold guilty.” Upon this conviction he was sentenced to be hung the ensuing January.

The Supreme Court in the Second District affirmed the judgment, ordered the sentence to be carried into execution, and a writ of error having been brought to this Court, with a stay of execution, the case comes here for final adjudication.

The point made by the counsel for the Plaintiff" in Error is, that the indictment only charges murder in the second degfee, and the jury having returned a general verdict of guilty, the Court of Oyer and Terminer had power only to pronounce a sentence authorized by law in the case of a conviction for murder in the second degree, and that the sentence actually pronounced was unauthorized and void. The question is one of much interest and importance, and has never been presented for adjudication since the change made by the statute of 1862, defining murder in a somewhat different manner from that contained in the Revised Statutes, and creating two classes or degrees of that crime. At common law there were no degrees of murder, and the short and comprehensive definition of the crime was, “ when a person of sound memory and discrimination unlawfully killeth any reasonable creature in being, and under the King’s peace, with malice aforethought, express or implied” (3 Coke’s Jus. 41).

The essential ingredient of the crime was malice aforethought, or prepense, as the old books called it, but this might be implied from circumstances, which necessarily proved its existence.

The Revised Statutes undertook to give a more precise as well

The Revised Statutes defined the killing of a human being (unless it be manslaughter, or excusable or justifiable homicide) to be murder in the following cases:

“ 1. When perpetrated from a premeditated design to effect the death of the person billed, or of any human being;

“ 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual;

“ 3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony.”

This was the entire definition, and although distinguished by different characteristics, and attendant circumstances, the definition embraced but one offence, not separated into, nor discriminated by grades or degrees of crime.

After the Revised Statutes went into operation, the case of The People v. Enoch arose, and was decided in the Supreme Court, and ultimately in the Court of Errors ( 13 Wend. 159 ). He was indicted for murder, and the averment was, that the offence was committed “ feloniously, unlawfully, and of malice aforethought,” using substantially the old common law form, and not adopting the words of the statutes. Enoch was convicted of murder, and sentenced to be executed.

The Supreme Court held that. the indictment was good, and sustained the judgment, and the Court of Errors approved the decision, holding, among other things, that the principal object of the statute was to restore the common law of murder, as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus to restrict certain cases to the grade of manslaughter, which theretofore were held to be murder.

If there had been no change in the statute, I am inclined to

In defining murder in the first degree, they changed the definition of the Revised Statutes of murder by dropping the third subdivision of section 5, and substituting in place of it the words, “ when perpetrated in committing the crime of arson in the first degree; ” and then added to the section a clause that “ such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, or when perpetrated without any design to effect death by a person engaged in the commission of any felony, shall be murder in the second degree.”

It will thus be seen that the transaction thus distinguished, and which had been embraced in the original section defining murder, was taken out of that section, and made the distinguishing mark of murder in the second degree; and whatever practical difficulty may arise, as it has not unfrequently arisen, in ascertaining what other taking of life may fall outside of the definition of other grades of homicide, and within this new class or degree, there is no difficulty in determining that a case which presents these features, to wit, a killing by one engaged in the commission of a felony, though without a predetermined intent to take life, is murder in the second degree.

While the crime of murder was a single offence, admitting of no degrees, the case of The People -y. Enoch might be deemed a controlling authority; but the moment the Legislature changed the law of murder, by creating a higher and lower grade, it seems to me to have lost its applicability, if, indeed, it be not, in spirit, an authority against the ruling of the Supreme Court in the case now under consideration.

The Chancellor, in maintaining the doctrine that an indictment in the old common law form, charging the crime to have been

If this be so, then the indictment in the case was a perfectly just indictment for murder in the second degree, since the killing, which was murder under the circumstances described in the third subdivision of the 5th section of the Revised Statutes., is now removed from the category of murder in the first degree, and constitutes murder in the second degree.

The jury, therefore, having found a general verdict of guilty, under an indictment which may be held to charge the crime of murder in the second degree, the Court had no right to assume that he was guilty of murder in the first degree, and pass a sentence which only a conviction for such an offence would authorize.

The decision in the case of The People v. Enoch proceeded, in effect, as we have seen, upon the ground that the Revised Statutes, in respect to the crime of murder, had not altered the common law, and that the definition therein given was but the adoption or introduction into the statute of the common law description of the crime. It was consequently held, that the words “ malice aforethought ” were so nearly identical with the words “ premeditated design,” as to fall within them. But with all proper respect for that decision, which appears to have been the unanimous judgment of the Court of Errors, affirming the judgment of the Supreme Court, it seems to me that both Courts overlooked and ignored the most important qualification of the words “premeditated design,” contained in the words following it in the statute, to wit, that the design thus premeditated must be one “ to effect the death of the person killed, or of any human being.” The ruling purpose must be one to effect death, whereas

This view is very clearly presented in the opinion of Johnson, J., in The People v. Clark (3 Seld. 385, 393), where he says that “ malice prepense had attained a broader meaning than belongs to the term premeditated design. The intent to tahe life was not necessary to constitute malice prepense. Even express malice, or malice in fact, is defined to be a deliberate intention of doing any bodily harm to another, unauthorized by law, and by no means necessarily involved an intent to take life. The change, therefore,” he adds, “ which the statute has effected, by substituting the word design’ in place of malice ’ * * * was to require—what the common law did not require—the existence of an actual intention to kill, to constitute that crime under the first subdivision of the 5th section ; ” and this view is said to be sustained “ in those States where the crime of murder has been distinguished by statute into murder in the first and second degrees.”

The logical sequence from these propositions would seem to be, that even under the Revised Statutes the proper mode of framing an indictment for murder would be, to follow the very words of the statute, and thus to indicate, by specific averments, under which one of those subdivisions of the 5th section definina: the ¡P offence, the alleged crime was committed.

But, however that may have been, under the law as it now stands, creating degrees of the crime of murder, the obligation seems to me imperative, to pursue the mode thus indicated; and my opinion is, that an indictment for murder must show, by proper averments on its face, that it is for murder in the first degree, if that is the offence intended to be presented for trial; and that where the record shows nothing but an indictment, which is a good indictment for murder in the second degree, and the jury

It is no answer to say, that on the trial in this case all the proof necessary was given to show that the Defendant was guilty of the crime of murder in the first degree, and that we may assume that the Court instructed the jury properly as to the character of the prisoner’s guilt, and therefore no injustice has been done.

This we cannot know, for this case comes before us without any evidence whatever, but simply upon the record showing under what indictment the trial took place, and what verdict was rendered—a verdict entirely consistent with an indictment and a trial for murder in the second degree; and if any other verdict had been rendered it would, in my judgment, have been erroneous.

If these views prevail, the judgment of the Supreme Court

But I see no objections to remitting the case to the Court below, for further action. Our reversal, in fact, touches nothing but the sentence.

Upon an indictment good for the offence of which I assume the prisoner was found guilty, a proper verdict has been rendered. Everything is right but the sentence ; and as that will be greatly mitigated by the position in which the case now stands, the record should be remitted to the Supreme Court, with directions to cause the Plaintiff in Error to be brought before it, to receive the sentence which the statute authorizes the Court to pronounce, upon a conviction for the crime of. murder in the second degree.

Affirmed.

JOEL TIFFANY,

State Reporter.