Cornell, J.
1. The form of the indictment in this case is substantially that prescribed by the statute for murder, and that it is sufficient to support a conviction for murder in the first degree is res adjudícala in this state, and no longer open to discussion. Bilansky v. The State, 3 Minn. 427, 435 ; State v. Dumphey, 4 Minn. 438.
2. The fact that both the judges sat together during the principal part of the trial, and cooperated in conducting it, does not render the trial void, as claimed by appellant. Both possess equal and like jurisdiction, authority and power in all actions and proceedings in said court, save that in cases when they act jointly, and differ in opinion, that of the senior judge shall prevail. Both are authorized, except in motions for new trials, which must be heard jointly, separately to try court and jury cases during the same term and at the same time, to divide between them the business of the court, and otherwise to regulate the same, as they may jointly deem best. Laws 1875, ch. 69. The fact that both concurred in the doing of an act that each had the power to do did not render the act invalid. Either was competent to [520]*520hold the court and conduct the trial alone, and, there being no prohibition in the statute, the cooperation of the other did not deprive the court of its jurisdiction in the matter. The implied prohibition in the clause permitting them ‘ ‘ by their joint consent to hear and determine any motions, and to try and decide any actions except jury cases,” does not prevent their sitting together and conducting the trial in jury cases, but simply recognizes their inability to deprive a party of a jury trial in a case where that right is secured by the constitution.
The organization of the court is complete, and its jurisdiction the same, whether held by one or both of the judges; and when, during a trial which is being conducted in the presence of both, one of them is temporarily absent, this will not affect the validity of the proceeding, especially when, as was the fact in this case, no objection is made at the time.
3. It is purely discretionary with the court whether or not to allow either party to interrogate a juror as to his qualifications, without first interposing a challenge : and whenever a challenge is interposed by one party and admitted by the other, there is nothing to try, and the juror must stand aside. The action of the court below in this matter was strictly regular and correct.
4. The proposed enquiries of witness Lick, Sr., on his cross-examination, as to the alleged facts connected with his marriage to the deceased six months previous to the homicide, as to the birth and death of her two children the day after her marriage, the burning of her building, etc., were properly disallowed as not a pertinent cross-examination.
The offer to show the same facts on the defence was also properly overruled. It was not proposed to connect the witness with either the death of the children or the burning of the building, and hence proof of those facts was wholly irrelevant for any purpose. It is not pretended but that the marital relations between the deceased and the witness were of the most friendly character. Under such circumstances [521]*521it can hardly be claimed that the refusal of witness to consummate a marriage that took place six months previous to the homicide, except upon the condition of her deeding to him certain property, can be regarded as any evidence tending to show a motive on the part of witness to murder his wife. The ruling of the court in this matter was correct.
5. The enquiry of witness Lick on his cross-examination, whether he had at any time before the homicide stated to •any one that his wife would be assaulted before a week, was properly overruled. It was so indefinite in every respect that its materiality and pertinency for any purpose cannot be discovered.
6. No error can be predicated upon the order of the court •allowing a view of the premises by the jury, as no objection was made to it at the time. On the contrary, it appears that it was had at the request of the jury, and with the consent of both parties, and no request seems to have been asked by the defendant to be present at such examination.
7. It is objected as error that an enquiry was allowed to be put to Dr. Boardman, as an expert, based upon certain testimony which he had heard, instead of upon a hypothetical case. There seems to have been no question made as to what such testimony was, or what facts were proved by it. In effect, therefore, the enquiry was predicated upon the hypothesis that the facts stated by the testimony referred to, and which the witness heard, were true, and was a convenient mode of stating a hypothetical case, permissible in the discretion of the court, within the rule laid down in Getchell v. Hill, 21 Minn. 464.
8. In stating the means by which the killing was effected, the indictment charged it to have been done by “ cutting her, the said Ulrica Lick, with a hatchet, or with some other sharp instrument to the grand jury unknown.” The court very properly declined to charge the jury that, in order to convict, it was necessary for them “to be satisfied beyond .a reasonable doubt that a cut was given to the deceased, [522]*522either with a hatchet or with some sharp instrument, and that such cut was fatal.” This precise point was made in the case of State v. Hoyt, 13 Minn. 132, 142, and decided adversely to the defendant. The true rule, as there stated and recognized, is this : “ It is sufficient if the proof agree with the allegation in its substance and generic character,, without precise conformity in every particular.” The same rule is also very fully considered and approved in State v. Fox, 1 Dutch. 566, 601.
The substantial charge in this case was the unlawful killing of the deceased by personal violence. Whether the instrument used in inflicting it was sharp or dull, whether the death resulted from a cut, stab, blow or some other like act of violence, were not matters so essentially descriptive of the offence as were necessary to be precisely stated in the indictment, or strictly proved as laid, (Gen. St. ch. 108, § 4,) and a variance in respect thereto must be deemed immaterial, as not in any way calculated to mislead the defendant as to the particular offence charged, or to prejudice him in his preparations for trial.
9. In its charge the court instructed the jury as follows : “As to the design, it was not necessary that this should have rankled in the heart of the defendant for weeks, or days, or even hours. If it existed in his mind at the moment when the act of killing was committed — if it was committed — that was sufficient.” This portion of the charge ivas not objected to. The court further gave them the following instructions, to which, and every part thereof, defendant excepted: “The law presumes that every man-intends to do that which he does. If the naked fact of killing is shown, the law presumes that it was done with a premeditated design; but if explanatory circumstances are shown, they are to be considered in arriving at the intent or design.” The court gave them the definition of murder in. its different degrees, as contained in the statutes, and charged that defendant was presumed by the law to be-[523]
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Cornell, J.
1. The form of the indictment in this case is substantially that prescribed by the statute for murder, and that it is sufficient to support a conviction for murder in the first degree is res adjudícala in this state, and no longer open to discussion. Bilansky v. The State, 3 Minn. 427, 435 ; State v. Dumphey, 4 Minn. 438.
2. The fact that both the judges sat together during the principal part of the trial, and cooperated in conducting it, does not render the trial void, as claimed by appellant. Both possess equal and like jurisdiction, authority and power in all actions and proceedings in said court, save that in cases when they act jointly, and differ in opinion, that of the senior judge shall prevail. Both are authorized, except in motions for new trials, which must be heard jointly, separately to try court and jury cases during the same term and at the same time, to divide between them the business of the court, and otherwise to regulate the same, as they may jointly deem best. Laws 1875, ch. 69. The fact that both concurred in the doing of an act that each had the power to do did not render the act invalid. Either was competent to [520]*520hold the court and conduct the trial alone, and, there being no prohibition in the statute, the cooperation of the other did not deprive the court of its jurisdiction in the matter. The implied prohibition in the clause permitting them ‘ ‘ by their joint consent to hear and determine any motions, and to try and decide any actions except jury cases,” does not prevent their sitting together and conducting the trial in jury cases, but simply recognizes their inability to deprive a party of a jury trial in a case where that right is secured by the constitution.
The organization of the court is complete, and its jurisdiction the same, whether held by one or both of the judges; and when, during a trial which is being conducted in the presence of both, one of them is temporarily absent, this will not affect the validity of the proceeding, especially when, as was the fact in this case, no objection is made at the time.
3. It is purely discretionary with the court whether or not to allow either party to interrogate a juror as to his qualifications, without first interposing a challenge : and whenever a challenge is interposed by one party and admitted by the other, there is nothing to try, and the juror must stand aside. The action of the court below in this matter was strictly regular and correct.
4. The proposed enquiries of witness Lick, Sr., on his cross-examination, as to the alleged facts connected with his marriage to the deceased six months previous to the homicide, as to the birth and death of her two children the day after her marriage, the burning of her building, etc., were properly disallowed as not a pertinent cross-examination.
The offer to show the same facts on the defence was also properly overruled. It was not proposed to connect the witness with either the death of the children or the burning of the building, and hence proof of those facts was wholly irrelevant for any purpose. It is not pretended but that the marital relations between the deceased and the witness were of the most friendly character. Under such circumstances [521]*521it can hardly be claimed that the refusal of witness to consummate a marriage that took place six months previous to the homicide, except upon the condition of her deeding to him certain property, can be regarded as any evidence tending to show a motive on the part of witness to murder his wife. The ruling of the court in this matter was correct.
5. The enquiry of witness Lick on his cross-examination, whether he had at any time before the homicide stated to •any one that his wife would be assaulted before a week, was properly overruled. It was so indefinite in every respect that its materiality and pertinency for any purpose cannot be discovered.
6. No error can be predicated upon the order of the court •allowing a view of the premises by the jury, as no objection was made to it at the time. On the contrary, it appears that it was had at the request of the jury, and with the consent of both parties, and no request seems to have been asked by the defendant to be present at such examination.
7. It is objected as error that an enquiry was allowed to be put to Dr. Boardman, as an expert, based upon certain testimony which he had heard, instead of upon a hypothetical case. There seems to have been no question made as to what such testimony was, or what facts were proved by it. In effect, therefore, the enquiry was predicated upon the hypothesis that the facts stated by the testimony referred to, and which the witness heard, were true, and was a convenient mode of stating a hypothetical case, permissible in the discretion of the court, within the rule laid down in Getchell v. Hill, 21 Minn. 464.
8. In stating the means by which the killing was effected, the indictment charged it to have been done by “ cutting her, the said Ulrica Lick, with a hatchet, or with some other sharp instrument to the grand jury unknown.” The court very properly declined to charge the jury that, in order to convict, it was necessary for them “to be satisfied beyond .a reasonable doubt that a cut was given to the deceased, [522]*522either with a hatchet or with some sharp instrument, and that such cut was fatal.” This precise point was made in the case of State v. Hoyt, 13 Minn. 132, 142, and decided adversely to the defendant. The true rule, as there stated and recognized, is this : “ It is sufficient if the proof agree with the allegation in its substance and generic character,, without precise conformity in every particular.” The same rule is also very fully considered and approved in State v. Fox, 1 Dutch. 566, 601.
The substantial charge in this case was the unlawful killing of the deceased by personal violence. Whether the instrument used in inflicting it was sharp or dull, whether the death resulted from a cut, stab, blow or some other like act of violence, were not matters so essentially descriptive of the offence as were necessary to be precisely stated in the indictment, or strictly proved as laid, (Gen. St. ch. 108, § 4,) and a variance in respect thereto must be deemed immaterial, as not in any way calculated to mislead the defendant as to the particular offence charged, or to prejudice him in his preparations for trial.
9. In its charge the court instructed the jury as follows : “As to the design, it was not necessary that this should have rankled in the heart of the defendant for weeks, or days, or even hours. If it existed in his mind at the moment when the act of killing was committed — if it was committed — that was sufficient.” This portion of the charge ivas not objected to. The court further gave them the following instructions, to which, and every part thereof, defendant excepted: “The law presumes that every man-intends to do that which he does. If the naked fact of killing is shown, the law presumes that it was done with a premeditated design; but if explanatory circumstances are shown, they are to be considered in arriving at the intent or design.” The court gave them the definition of murder in. its different degrees, as contained in the statutes, and charged that defendant was presumed by the law to be-[523]*523innocent, and that, before they could convict him of the crime charged, they must be satisfied beyond a reasonable doubt that he killed Ulrica Lick, that he killed her without authority of law, and that he killed her with a premeditated design to effect her death, or the death of some hitman being, and that they were the exclusive judges of all the questions of fact in the case.
These instructions contained several distinct propositions, most of which are clearly correct and unobjectionable, and, conceding that some particular one or more of them are erroneous, it may well be doubted whether a general objection to the whole and every part thereof, without particularly specifying the obnoxious portion, would be sufficient upon which to predicate error.
The only point assigned as error in this court is the instruction that “the law presumes a premeditated design from the naked fact of killing.” Though, as an abstract proposition, this instruction may be open to criticism, and not strictly accurate, yet the practical question presented for consideration is whether, taken in connection with the rest of the charge, and as applied to the facts in this case, it constituted such material error as may have been jirejudicial to the defendant. The record before us discloses a homicide committed by the defendant without any provocation, by suddenly springing upon the deceased, while she was passing with her husband from one part of their premises to another, and striking her with a hatchet or stone-hammer, thereby felling her to the ground and causing her death. It contains no suggestion that the act of killing was perpetrated in any other manner, or under any other circumstances, and it cannot be presumed that the homicide was. of another or different character than the one thus affirmatively shown by the bill of exceptions. Hence it must be assumed that the “naked fact of killing,” referred to by the court, was a homicide committed in this particular manner, and its instruction must be understood as intending to [524]*524convey to the jury the idea that a premeditated design was to be presumed or inferred from the fact of an unlawful killing, perpetrated in such manner and under such circumstances, by the use of a hatchet or such like dangerous instrument, and where no other fact or circumstance appears to qualify the character of the act, or to indicate the motive with which it was done; and as it is presumed that every sane person intends the ordinary and natural consequences of his own deliberate act, and that every voluntary act springs from deliberate volition, and not blind passion; and as every act unlawful in itself is presumed to have been wrongfully intended till the contrary appears, (1 Taylor Ev. § 103 and note; 3 Greenl. Ev. § § 13, 14; 1 Russell on Crimes, 482, and notes ; State v. Brown, 12 Minn. 538, 543,) it follows that such a killing, unaccompanied by any circumstances of extenuation or explanation, necessarily raises the presumption that it was intentionally and maliciously done ; and unless it appears that such intention w;as formed and executed under the influence of “ a heat of passion produced by a sudden provocation, or in sudden combat,” it is equivalent in import and meaning to a premeditated design, as that pirrase is used in the statutes. State v. Shippey, 10 Minn. 223; State v. Hoyt, 13 Minn. 132, 149.
Upon this question of intention, as Avell as upon all other matters of fact, the court properly instructed the jury that the burden of proof Avas upon the prosecution; and, upon the record before us, we can discover no error in the charge in any Avay prejudicial to the defendant.
10. Save as restricted by §§ 5 and 11 of the bill of rights, there is no constitutional limitation upon the power of the legislature over the subject of criminal punishment. In most criminal offences it has, in the exercise of this undoubted power, prescribed a maximum and minimum penalty, and has imposed upon the court before Avhich a conviction may be had the duty of graduating the punishment, Avithin these limits, according to its own best discretion. No reason occurs [525]*525why the same rule or principle may not be applied to the crime of murder in the first degree, nor why, considered as a question of power, the discretion of fixing the greater or the less penalty in each particular case may not be left with the jury instead of the court. Our statute, which prescribes as a punishment for this offence the penalty of death or imprisonment for life, according as the jury may by their verdict determine, is a valid act of legislation.
Ordered that this case be remanded to the district court for Ramsey county, with instructions to proceed in awarding judgment and sentence upon the verdict.