MB. COMMISSIONEB CALLAWAY
prepared the follow-' ing opinion for the court:
George Hliboka, having been found guilty of the crime of murder in the first degree, was sentenced to be hanged. From this judgment, and from an order denying his motion for a new trial, he has appealed to this court.
The only error which has been argued by his counsel in their brief is that the information under which he was convicted does not charge any greater crime than that of murder in the second degree. The information charges that the defendant did the murder willfully, unlawfully, feloniously, premeditatedly and of his malice aforethought'. It i$ argued that the information does not charge murder in the first degree, for the reason that the word “deliberately” is not included among the charging words.
[457]*457There is a wide divergence of opinion between the adjudicated cases and text-writers upon the question which this contention presents. It can hardly be considered an open one in this jurisdiction, since the very able and exhaustive opinion rendered by the supreme court of the territory in Territory v. Stears, 2 Mont. 324, which has been followed or cited with approval in Territory v. McAndrews, 3 Mont. 158; Territory v. Godas, 8 Mont. 347, 21 Pac. 26; Territory v. Johnson, 9 Mont. 21, 22 Pac. 346; State v. Northrup, 13 Mont. 522, 35 Pac. 228, and State v. Metcalf, 17 Mont. 417, 43 Pac. 182. The Stears decision is in consonance with the great weight of authority in this country, and, we think, with sound reason. The basic principle underlying the doctrine announced in that case is that the legislature has the right to define the crime of murder, to divide it into degrees, and to prescribe the method of determining the degree in a particular case. That it has such power is undisputed by any one, and that it has exercised it is readily seen by an inspection of the following sections of the Penal Code, viz.:
'“Sec. 350. Murder is the unlawful killing of a human being, with malice aforethought.
“Sec. 351. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
“Sec. 352. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murder are of the second degree.
“Sec. 353. Every person guilty of murder in the first degree shall suffer death; and every person guilty of murder in the second degree, is punishable by imprisonment in the state prison not less than ten years.”
[458]*458“Sec. 2145. "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”
There is but one crime of murder, and its division into degrees is simply for the purpose of adjusting the punishment “with reference to the presence or absence of circumstances of aggravation.” (Davis v. Utah, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153.) The custom of punishing murderers in different modes, commensurate with the aggravation of their crimes, is not a new or even a modern one. It has obtained from the earliest times. Numerous examples are given by Blaekstone (Book 4, c. 14). If murder in the first degree and murder in the second degree were two different crimes, then they should be so charged, and there would be no necessity for the jury to find the degree of the crime at all. It would only be necessary for the jury to find that the defendant was guilty in manner and form as charged in the information.
In Territory v. Stears, supra, the court comments upon the fact that an indictment for murder at common law charged that the defendant “feloniously, willfully and of his malice aforethought” did the aGt that caused the killing. Under such an indictment the defendant could be convicted of murder in the first degree, and, before a conviction of murder in the first degree could be had at common law, it was necessary, precisely as it is under our statute, that the element of settled deliberation, premeditation, purpose and design enter into the crime. The court says that inasmuch as our statutory definition of murder is, in legal effect, the same as the common-law definition, and we have adopted the common-law description of the crime, an indictment for murder, good at common law, is good under our statute.
A majority of the courts of last resort in the United States hold that the words “deliberately” and “premeditatedly” are not essential to make a good indictment or information for murder in the first degree. Such is the rule in Alabama, California, Colorado, Connecticut, Dakota, Idaho, Louisiana, Maine, Mary[459]*459land, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Htah, Virginia, Washington and Wisconsin.
Some comparatively recent cases are State v. Cole, 132 N. C. 1069, 44 S. E. 391; State v. Johnson, 104 La. 417, 29 South. 24; Ruiz v. Territory, 10 N. Mex. 120, 61 Pac. 126; Perkins v. Territory, 10 Okl. 506, 63 Pac. 860. But if any additional authority is needed to sustain this proposition it will be found in the case of Davis v. Utah Territory, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153, in which Mr. Justice Harlan, speaking for the court, goes over the subject thoroughly. The statutes construed áre practically the same as our own upon this subject. In that opinion we find the following: “Other assignments of error present the objection that the indictment is so framed that it will not support a verdict of guilty of murder in the first degree. This objection is based in part upon the theory that murder in the first degree and murder in the second degree are made distinct, separate offenses. But this is an erroneous interpretation of the statute. The crime defined is that of murder. The statute divides that crime into two classes in order that the punishment may be adjusted with reference to the presence or absence of circumstances of aggravation. And therefore, 'whenever a crime is distinguished into degrees,’ it is left to the jury, if they convict the defendant, 'to find the degree of the crime of which he is guilty.’ 2 Comp. Laws Utah, 1888, p. 715, Sec. 5076. If the defendant pleads guilty 'of a crime distinguis'hed or divided into degrees, the court must, before passing sentence, determine the degree.’ Id. p. 721, Sec. 5101.1 An indictment which clearly and distinctly alleges facts showing a murder by the unlawful killing of a human being with malice aforethought is good as an indictment for murder under the Utah statutes, although it may not indicate upon its face, in terms, the degree of that crime, and thereby the nature of the punishment that may be inflicted.
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MB. COMMISSIONEB CALLAWAY
prepared the follow-' ing opinion for the court:
George Hliboka, having been found guilty of the crime of murder in the first degree, was sentenced to be hanged. From this judgment, and from an order denying his motion for a new trial, he has appealed to this court.
The only error which has been argued by his counsel in their brief is that the information under which he was convicted does not charge any greater crime than that of murder in the second degree. The information charges that the defendant did the murder willfully, unlawfully, feloniously, premeditatedly and of his malice aforethought'. It i$ argued that the information does not charge murder in the first degree, for the reason that the word “deliberately” is not included among the charging words.
[457]*457There is a wide divergence of opinion between the adjudicated cases and text-writers upon the question which this contention presents. It can hardly be considered an open one in this jurisdiction, since the very able and exhaustive opinion rendered by the supreme court of the territory in Territory v. Stears, 2 Mont. 324, which has been followed or cited with approval in Territory v. McAndrews, 3 Mont. 158; Territory v. Godas, 8 Mont. 347, 21 Pac. 26; Territory v. Johnson, 9 Mont. 21, 22 Pac. 346; State v. Northrup, 13 Mont. 522, 35 Pac. 228, and State v. Metcalf, 17 Mont. 417, 43 Pac. 182. The Stears decision is in consonance with the great weight of authority in this country, and, we think, with sound reason. The basic principle underlying the doctrine announced in that case is that the legislature has the right to define the crime of murder, to divide it into degrees, and to prescribe the method of determining the degree in a particular case. That it has such power is undisputed by any one, and that it has exercised it is readily seen by an inspection of the following sections of the Penal Code, viz.:
'“Sec. 350. Murder is the unlawful killing of a human being, with malice aforethought.
“Sec. 351. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
“Sec. 352. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murder are of the second degree.
“Sec. 353. Every person guilty of murder in the first degree shall suffer death; and every person guilty of murder in the second degree, is punishable by imprisonment in the state prison not less than ten years.”
[458]*458“Sec. 2145. "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”
There is but one crime of murder, and its division into degrees is simply for the purpose of adjusting the punishment “with reference to the presence or absence of circumstances of aggravation.” (Davis v. Utah, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153.) The custom of punishing murderers in different modes, commensurate with the aggravation of their crimes, is not a new or even a modern one. It has obtained from the earliest times. Numerous examples are given by Blaekstone (Book 4, c. 14). If murder in the first degree and murder in the second degree were two different crimes, then they should be so charged, and there would be no necessity for the jury to find the degree of the crime at all. It would only be necessary for the jury to find that the defendant was guilty in manner and form as charged in the information.
In Territory v. Stears, supra, the court comments upon the fact that an indictment for murder at common law charged that the defendant “feloniously, willfully and of his malice aforethought” did the aGt that caused the killing. Under such an indictment the defendant could be convicted of murder in the first degree, and, before a conviction of murder in the first degree could be had at common law, it was necessary, precisely as it is under our statute, that the element of settled deliberation, premeditation, purpose and design enter into the crime. The court says that inasmuch as our statutory definition of murder is, in legal effect, the same as the common-law definition, and we have adopted the common-law description of the crime, an indictment for murder, good at common law, is good under our statute.
A majority of the courts of last resort in the United States hold that the words “deliberately” and “premeditatedly” are not essential to make a good indictment or information for murder in the first degree. Such is the rule in Alabama, California, Colorado, Connecticut, Dakota, Idaho, Louisiana, Maine, Mary[459]*459land, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Htah, Virginia, Washington and Wisconsin.
Some comparatively recent cases are State v. Cole, 132 N. C. 1069, 44 S. E. 391; State v. Johnson, 104 La. 417, 29 South. 24; Ruiz v. Territory, 10 N. Mex. 120, 61 Pac. 126; Perkins v. Territory, 10 Okl. 506, 63 Pac. 860. But if any additional authority is needed to sustain this proposition it will be found in the case of Davis v. Utah Territory, 151 U. S. 262, 14 Sup. Ct. 328, 38 L. Ed. 153, in which Mr. Justice Harlan, speaking for the court, goes over the subject thoroughly. The statutes construed áre practically the same as our own upon this subject. In that opinion we find the following: “Other assignments of error present the objection that the indictment is so framed that it will not support a verdict of guilty of murder in the first degree. This objection is based in part upon the theory that murder in the first degree and murder in the second degree are made distinct, separate offenses. But this is an erroneous interpretation of the statute. The crime defined is that of murder. The statute divides that crime into two classes in order that the punishment may be adjusted with reference to the presence or absence of circumstances of aggravation. And therefore, 'whenever a crime is distinguished into degrees,’ it is left to the jury, if they convict the defendant, 'to find the degree of the crime of which he is guilty.’ 2 Comp. Laws Utah, 1888, p. 715, Sec. 5076. If the defendant pleads guilty 'of a crime distinguis'hed or divided into degrees, the court must, before passing sentence, determine the degree.’ Id. p. 721, Sec. 5101.1 An indictment which clearly and distinctly alleges facts showing a murder by the unlawful killing of a human being with malice aforethought is good as an indictment for murder under the Utah statutes, although it may not indicate upon its face, in terms, the degree of that crime, and thereby the nature of the punishment that may be inflicted. Of course, if an indictment is so framed as to clearly show that the crime charged is not of the class desig[460]*460nated as murder in the first degree, the jury conld not find a verdict of guilty of murder in tbat degree. But, as already suggested, the pleader need not indicate tbe degree, but may restrict tb,e averments to sucb facts as, in law, show a murder — that is to say, an unlawful killing, witb malice aforethought — leaving tbe ascertainment of tbe degree to tbe jury, or, in case of confession, to tbe cQurt. As tbe acts wbicb, under tbe Btah statute, constitute murder, whether of tbe highest or lowest degree, constituted murder at common law, it is clear tbat an indictment good at common law as an indictment for murder, in whatever mode or under whatever circumstances of atrocity tbe crime may have been committed, is sufficient for any degree of tbe crime of murder under a statute relating to murder as defined at common law, and establishing degrees of tbat crime in order that the punishment may be adapted to the special circumstances of each case. These views are abundantly sustained by authority.”
There is no merit in appellant’s contention. To bold otherwise would be to bold tbat under our statute, framed as it is to simplify tbe forms of pleading, and to regard tbe substance rather than tbe shadow, tbe pleader must inform against one accused of murder witb more particularity than was required at common law. As said in People v. King, 27 Cal. 507, 87 Am. Dec. 95 : “Our Criminal Code was designed to work tbe same change in pleading and practice in criminal actions wbicb is wrought by tbe Civil Code in civil actions. Both axe fruits of tbe same progressive spirit, wbicb in modern times has endeavored at least to do away witb tbe mere forms and techinalities of tbe common law, wbicb were productive of no good, and frequently brought tbe administration of justice into contempt by defeating its ends.”
The only complaint appellant makes against tbe information is tbat tbe word “deliberately” was omitted therefrom. Otherwise be concedes tbat it contains a statement of tbe facts constituting tbe offense, in ordinary and concise language, and in sucb a manner as to enable a person of common understanding to [461]*461know wbat is intended; that it is certain as to tbe party charged, tbe offense charged, and tbe particular circumstances of tbe offense charged. (Penal Code, Secs. 1832, 1834.)
It follows that tbe judgment should be affirmed.
Per Curiam. — Eor tbe reasons given in tbe foregoing opinion, tbe judgment is affirmed.
Affirmed.