By the Court,
Cobb, 0. J.
The appellant was convicted of murder in the first degree at the June term, 1863, [388]*388of the criminal court of Leavenworth county. He moved for a new trial; the motion was overruled, and he excepted, and then moved to arrest the judgment, on the ground that the facts stated in the indictment do not constitute a public offense; which motion was also overruled, and he excepted, and brought the cause here for review.
It is claimed by counsel that the indictment does not charge a deliberate and premeditated intention to kill, and is in that respect defective.
We will first examine that question.
Section one of the act regulating crimes and punishments, (Oomp. Lmvs, p. 287,) defining murder in the first degree, provides that “ every murder that shall be committed by moans of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of any arson, rape, robbery, burglary or other felony, shall be deemed piurder in the first degree and as there is no pretence that the killing in question was done by means of poison or lying in wait, or in the attempt to commit any of the other crimes above mentioned, to be murder in the first degree, the killing must have been willful, deliberate and premeditated, and such deliberate and premeditated will or intent to kill being an essential ingredient in the crime must be alleged in the indictment, else the prisoner is convicted of a crime for which ho has not been indicted.
Is it so alleged ?
The indictment first alleges a willful, deliberate and premeditated assault; second, a willful, deliberate and premeditated shooting and wounding; third, that the wounding was mortal, and the rvounded man instantly died, and closes as follows: “And the jurors aforesaid, upon their oaths aforesaid, do say that the said Bailey Smith him, the said James Duke, in the the manner and by the meansf aforesaid, unlawfully, feloniously, willfully, deliberately, fremeditatedly, and of his malice afore[389]*389thought, did kill and murder, contrary to the form of the statute,” &c.
The language, taken together, clearly -imports that the killing ivas willful, deliberate and premeditated — the concluding paragraph clearly alleging that the killing, before mentioned, was done willfully, deliberately and premeditate dly.
But it is argued that the last clause, commencing “ and the jurors aforesaid, do so say,” is á mere legal conclusion, and cannot aid the prior defective statement of fact.
The case of The State vs. Touts, (8 Ohio S. R., 98,) cited to sustain that proposition, differs from the one in question by the concluding clause, commencing Avith the words, “ and so the grand jurors,” &c., thus indicating that the deliberate and premeditated malice there spoken of was inferred from the facts before stated; but the omission .of the word “so,” would probably have made no difference in the decision of that case.
The common law system of criminal pleading was in force, in Ohio, and its principles governed the case, and that fbrm'al conclusion of an indictment had been so long in use to express.' a legal conclusion, derived from the facts already pleaded, '’its to have acquired an artificial and technical meaning, which would probably prevail Ayithont strict regard to the literal signification of the language.
But our code of criminal procedure, (§ 89,) has provided that the contents of an indictment shall be the title of the action, and a statement of the facts constituting the offense, in plain and concise language.
It is also declared, by section eighty-seven of the same act, that “ the rules by which the sufficiency of pleadings is to be determined are those herein described.” These two sections diArest the indictment of all artificial and technical construction, and give to its language its natural and ordinary meaning. In that sense, as we have already seen, the lan[390]*390guago imports that the killing was willful, deliberate end premeditated. The indictment was, therefore, sufficient, and the motion in arrest properly overruled.
Did the court err in refusing to change the venue ? flection ono hundred and fifty-two of the criminal code pro-.ddes that “ any criminal cause, pending in any district, way be removed by tho order of such court, or the judge thereof, to the district court of another county in the same district, whenever it shall appear, in the manner hereinafter provided, that tho minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair erial cannot be had therein.”
Section ono hundred and fifty-eight provides that the application shall be sustained by affidavit, &c.
Section ono hundred and fifty-eight directs at what ¡stage of the cause the application must be made.
Section ono hundred and fifty-nine provides that in ease the application is out of time, if the defendant will, in addition to the oath requisite in ordinary and timely applications, swear oh at i lie facts on which ho grounds his application have first come co his knowledge since the last preceding continuance cf the .sauso, the court shall grant a change of venue.
And the law establishing the criminal court of Leavenworth county, (Compiled Laivs, 348,) makes all laws relative to criminal matters- applicable to said criminal court.
The defendant sustained his application by his affidavit, fully conforming to section one hundred and fifty-two, and his application being out of timo, swore that tlio grots id;; of it halve come to his knowledge since the last continuance, thus conforming to section ono hundred and fifty-nine. Tho record docs not show that any notice of tho motion was given to the district attorney, nor does it show any objection by him to tho hearing of the motion for want of notice. If any such objection was made, overruled and excepted to, it should be upon tho record. It appears, therefore, that he went into the [391]*391argument of the motion without objection, and thereby waived notice, if none had been given.
A party cun never be permitted to contest a motion upon the merits without objection to the want of notice, and after-wards avoid the effect of the motion by alleging such want of notice. The alleged lack of notice was, therefore, no reason for overruling the motion.
The defendant, then, having conformed to the statute, in making hie application, had the court any discretion to deny his motion ?
Section one hundred and fifty-two of the code, above cited, is in terms permissive ; but there are numerous decisions under different statutes granting powers to courts and officers, construing the word, may, by which such powers wore granted, as equivalent to must or shall. Chancellor Kent, in Newbury Turnpike Co. vs. Millar, (5 J. C., 118,) after reviewing the authorities on the subject, says :
“But the principle to bo deduced from the cases is, that whenvevor an act to be done under a statute is to be done by a public officer and concerns the public interests or tlio rights of third persons, which requires the performance of the act, then it becomes a duty in the officer to do it.” [Mayor, &c., of the City of N.
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By the Court,
Cobb, 0. J.
The appellant was convicted of murder in the first degree at the June term, 1863, [388]*388of the criminal court of Leavenworth county. He moved for a new trial; the motion was overruled, and he excepted, and then moved to arrest the judgment, on the ground that the facts stated in the indictment do not constitute a public offense; which motion was also overruled, and he excepted, and brought the cause here for review.
It is claimed by counsel that the indictment does not charge a deliberate and premeditated intention to kill, and is in that respect defective.
We will first examine that question.
Section one of the act regulating crimes and punishments, (Oomp. Lmvs, p. 287,) defining murder in the first degree, provides that “ every murder that shall be committed by moans of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of any arson, rape, robbery, burglary or other felony, shall be deemed piurder in the first degree and as there is no pretence that the killing in question was done by means of poison or lying in wait, or in the attempt to commit any of the other crimes above mentioned, to be murder in the first degree, the killing must have been willful, deliberate and premeditated, and such deliberate and premeditated will or intent to kill being an essential ingredient in the crime must be alleged in the indictment, else the prisoner is convicted of a crime for which ho has not been indicted.
Is it so alleged ?
The indictment first alleges a willful, deliberate and premeditated assault; second, a willful, deliberate and premeditated shooting and wounding; third, that the wounding was mortal, and the rvounded man instantly died, and closes as follows: “And the jurors aforesaid, upon their oaths aforesaid, do say that the said Bailey Smith him, the said James Duke, in the the manner and by the meansf aforesaid, unlawfully, feloniously, willfully, deliberately, fremeditatedly, and of his malice afore[389]*389thought, did kill and murder, contrary to the form of the statute,” &c.
The language, taken together, clearly -imports that the killing ivas willful, deliberate and premeditated — the concluding paragraph clearly alleging that the killing, before mentioned, was done willfully, deliberately and premeditate dly.
But it is argued that the last clause, commencing “ and the jurors aforesaid, do so say,” is á mere legal conclusion, and cannot aid the prior defective statement of fact.
The case of The State vs. Touts, (8 Ohio S. R., 98,) cited to sustain that proposition, differs from the one in question by the concluding clause, commencing Avith the words, “ and so the grand jurors,” &c., thus indicating that the deliberate and premeditated malice there spoken of was inferred from the facts before stated; but the omission .of the word “so,” would probably have made no difference in the decision of that case.
The common law system of criminal pleading was in force, in Ohio, and its principles governed the case, and that fbrm'al conclusion of an indictment had been so long in use to express.' a legal conclusion, derived from the facts already pleaded, '’its to have acquired an artificial and technical meaning, which would probably prevail Ayithont strict regard to the literal signification of the language.
But our code of criminal procedure, (§ 89,) has provided that the contents of an indictment shall be the title of the action, and a statement of the facts constituting the offense, in plain and concise language.
It is also declared, by section eighty-seven of the same act, that “ the rules by which the sufficiency of pleadings is to be determined are those herein described.” These two sections diArest the indictment of all artificial and technical construction, and give to its language its natural and ordinary meaning. In that sense, as we have already seen, the lan[390]*390guago imports that the killing was willful, deliberate end premeditated. The indictment was, therefore, sufficient, and the motion in arrest properly overruled.
Did the court err in refusing to change the venue ? flection ono hundred and fifty-two of the criminal code pro-.ddes that “ any criminal cause, pending in any district, way be removed by tho order of such court, or the judge thereof, to the district court of another county in the same district, whenever it shall appear, in the manner hereinafter provided, that tho minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair erial cannot be had therein.”
Section ono hundred and fifty-eight provides that the application shall be sustained by affidavit, &c.
Section ono hundred and fifty-eight directs at what ¡stage of the cause the application must be made.
Section ono hundred and fifty-nine provides that in ease the application is out of time, if the defendant will, in addition to the oath requisite in ordinary and timely applications, swear oh at i lie facts on which ho grounds his application have first come co his knowledge since the last preceding continuance cf the .sauso, the court shall grant a change of venue.
And the law establishing the criminal court of Leavenworth county, (Compiled Laivs, 348,) makes all laws relative to criminal matters- applicable to said criminal court.
The defendant sustained his application by his affidavit, fully conforming to section one hundred and fifty-two, and his application being out of timo, swore that tlio grots id;; of it halve come to his knowledge since the last continuance, thus conforming to section ono hundred and fifty-nine. Tho record docs not show that any notice of tho motion was given to the district attorney, nor does it show any objection by him to tho hearing of the motion for want of notice. If any such objection was made, overruled and excepted to, it should be upon tho record. It appears, therefore, that he went into the [391]*391argument of the motion without objection, and thereby waived notice, if none had been given.
A party cun never be permitted to contest a motion upon the merits without objection to the want of notice, and after-wards avoid the effect of the motion by alleging such want of notice. The alleged lack of notice was, therefore, no reason for overruling the motion.
The defendant, then, having conformed to the statute, in making hie application, had the court any discretion to deny his motion ?
Section one hundred and fifty-two of the code, above cited, is in terms permissive ; but there are numerous decisions under different statutes granting powers to courts and officers, construing the word, may, by which such powers wore granted, as equivalent to must or shall. Chancellor Kent, in Newbury Turnpike Co. vs. Millar, (5 J. C., 118,) after reviewing the authorities on the subject, says :
“But the principle to bo deduced from the cases is, that whenvevor an act to be done under a statute is to be done by a public officer and concerns the public interests or tlio rights of third persons, which requires the performance of the act, then it becomes a duty in the officer to do it.” [Mayor, &c., of the City of N. Y. vs. Fain, 3 Hill, N. Y. 612, and numerous eases there cited; Cutler vs. Howard., 9 Wis., 309, and eases there died.)
The doctrine thus laid down by chancellor Kent, it is believed, has never been judicially' controverted, and may be regarded as settled.
And the only question arising in such cases is whether the party has a right which requires the performance of the act. Had the defendant a right to a change of vonuo in this caso ? Most clearly he had such right, unless the statute has conferred a jurisdiction upon the court, upon some ground and in some manner to decide that one shall have a change of venue, and another shall not, although both have equally [392]*392conformed to the law by presenting to the court the evidence which the statute prescribes. No means to discriminate between such cases seems to be given to the court.
The law has required the defendant not to prove -to the satisfaction of the court, but to support the allegations of his petition by an affidavit, and we do not see how the court can require more, or discredit the evidence which the statute has precribed.
There is no provision for receiving counter evidence, and if the court is to discredit the defendant’s affidavit at all, it must be upon his own personal knowledge of the case; and had the legislature intended to authorize so strange an anomaly as the decision of judicial questions upon the extrajudicial knowledge of the judge, it is believed such authority would not have been left to doubtful inference, but expressed in clear and unequivocal terms.
A comparison of the section under consideration with succeeding ones will throw some light on its construction.
Section one hundred and fifty-three declares that “ whenever it shall appear, in the manner hereinafter provided, that the inhabitants of tire entire district are so prejudiced against tho defendant that a fair trial cannot be had therein, the cause shall, by order of the court or judge, be removed to another district in which such prejudice is not alleged to exist.”
This section provides for removing causes from#the district for the same reasons and on the same kind of evidence that section one hundred and fifty-two requires for removing them from the coun y.
The two sections are in policy identical. No reason is apparent why the court in one should be clothed with discretionary power, and not in the other; and yet, in section one hundred and fifty-three the language is imperative, the cause shall be removed. It is difficult to believe that without any assignable reason the legislature intended to make the right, [393]*393to a change of venue absolute in the one case and subject to the discretion of the court in the other.
Section one hundred and fifty-nine, before referred to, providing for cases when the application is out of time, is equally applicable to removals from th e county and from the district, and declares, imperatively, that in such cases, if the defendant makes the affidavit therein required, the court shall grant a change of venue. This provision, in our opinion, makes it certain that no discretion is given to the court by section one hundred and fifty-two, for it cannot be regarded as the legislative will that timely application for change of venue shall be subject to the discretion of the court, and yet, by delay of the defendant in making the motion, his right to a change of venue shall become absolute. But in this case the affidavit, provided for in section one hundred and fifty-nine, was made, and by the imperative language of that section, the court was required to grant the change of venue, and the refusal to do so was error.
Upon the several exceptions taken by the appellant to the charge of the court below, after much consultation, the court is so divided in opinion as to be unable to settle the questions thereby raised.
For the errors of the court in denying a change of venue, the judgment must bo reversed and the ease remanded.
Bailey, J., concurring.
Kingman, J., dissenting, as to change of venue.