By the Court,
Talbot, J.
(after stating the facts as above):
As error it is urged by counsel for defendant that the case was presented to the jury upon two theories: First, that the appellant was guilty as charged in the indict[517]*517ment with .killing the deceased with malice aforethought; second, that the homicide was committed in the perpetration of robbery; and that, as the court submitted the case upon both theories, it is impossible for any one. to say for what crime the appellant was convicted.
It" will be observed that the indictment follows closely the form provided by the statute. Section 17 of the act relating to crimes and punishments provides that: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree.” (Comp. Laws, 4672.)
Under this statute and the indictment as drawn, defendant could be convicted of either wilful, deliberate, and premeditated killing, or of a killing committed in the perpetration of a robbery, whether it was or was not wilful, deliberate, and premeditated. If the defendant in advance planned or intended to kill in order to accomplish the robbery, and in pursuance of that intent did kill the deceased, he was guilty of both a wilful, deliberate, and premeditated killing, and of a killing in the perpetration of a robbery. These are not separate statutory homicides, and if the jury believed, beyond a reasonable doubt, that the defendant was guilty of killing in either one or both of these ways, they were justified in the rendition of the verdict carrying the extreme penalty. If the indictment had unnecessarily charged that the killing was committed in the perpetration of a robbery, and there had been no evidence indicating that it was committed in such perpetration, proof that the killing was wilful, deliberate, and premeditated would have been at variance with the allegation in the indictment, and an instruction in such a case, based upon the two theories of wilful, deliberate, and premeditated killing and of a killing in the perpetration of robbery, and directing the jury that they could convict upon either, would have been erroneous.
[518]*518The evidence in this case is stronger than that on which Dr. Crippen was recently convicted and promptly hanged in London, and it is'sufficient to justify the conclusion that the killing was done wilfully, deliberately, and premeditatedly for the purpose of accomplishing robbery. But if the evidence indicated that there was a robbery, and there was no evidence indicating a previous intention to kill, nevertheless the killing committed in the perpetration of the robbery would be presumed to have been wilful, deliberate, and premeditated.
In State v. Lindsay, 19 Nev. 50, 3 Am. St. Rep. 776, Justice Hawley, speaking for this court, said: "Under this statute there are certain kinds of murder which carry with them conclusive evidence of premeditation, viz, when the killing is premeditated by means of poison, lying in wait, or torture; or when the homicide is committed in the perpetration, or attempt to perpetrate, any of the felonies enumerated in this statute. In these cases the question whether the killing was wilful, deliberate, and premeditated is answered by the statute in the affirmative, and, if the prisoner is guilty of the offense charged, it is murder in the first degree. (State v. Hymer, 15 Nev. 50, and authorities cited.)"
It has often been held that a felony and a homicide committed in perpetrating or attempting to perpetrate it, together, constitute the one crime of murder and may be charged as such and in the same manner as ordinary murders are alleged, and that it is not necessary to charge in the indictment that the murder was committed in the perpetration of another crime in order to introduce testimony showing that a felony was committed in addition to it, and that, under an indictment charging murder in the ordinary form and proof that it was committed in the perpetration of a felony, malice, deliberation, and premeditation are implied. (State v. Meyers, 99 Mo. 107, 13 S. W. 516; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757; State v. Covington, 117 N. C. 834, 23 S. E. 337; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; State v. Johnson, 72 [519]*519Iowa, 393, 34 N. W. 177; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Titus v. State, 49 N. J. Law, 36, 7 Atl. 621.)
In State v. Foster, 136 Mo. 653, 38 S. W. 721, it was held that, while the charge that a homicide was committed in an attempt to perpetrate a robbery is unnecessary, it will not vitiate an indictment for murder in the first degree, and that in such a case the indictment may be drawn in the common form.
In Reyes v. State, 10 Tex. App. 1, it was held that evidence tending to show that the killing was done in the perpetration of arson, rape, robbery, or burglary is admissible as part of the res gestee on the trial under an indictment charging murder with express malice aforethought.
In People v. Flanagan, 174 N. Y. 357, 66 N. E. 988, on an indictment for murder in the first degree, a conviction for murder perpetrated while committing a felony, although not specially pleaded, was sustained, and it was said- that deliberation and premeditation need not be found.
In State v. McGinnis, 158 Mo. 106, 59 S. W. 83, it was held that it is proper in a trial under an indictment which only charges murder to instruct the jury that, if the homicide was perpetrated in an attempt to commit robbery, the defendant was guilty of murder in the first degree.
In State v. Weems, 96 Iowa, 428, 65 N. W. 587, the indictment was in the usual form and without averments as to the murder having been committed in an attempt to perpetrate robbery, and it was held proper to instruct the jury that, if two or more persons conspire to commit robbery, and in pursuance of such conspiracy they or either of them kill a human being, it is murder.
In State v. King, 24 Utah, 483, 68 Pac. 418, 91 Am. St. Rep. 808, the information for murder contained the usual charge regarding malice and premeditation, but did not mention robbery. It was held sufficient to charge murder in the first degree; and that evidence to show that it was committed in the perpetration of a robbery was properly admissible; and that when two or more persons [520]*520associate together to rob another, and he is killed by one of them, the act is that of each and all of the conspirators, and all are chargeable therewith. (State v. Schmidt, 136 Mo. 652, 38 S. W. 719.)
It is claimed that some of the instructions given by the court were erroneous, and more particularly the following: "The jury are instructed that in this case evidence of flight has been introduced.
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By the Court,
Talbot, J.
(after stating the facts as above):
As error it is urged by counsel for defendant that the case was presented to the jury upon two theories: First, that the appellant was guilty as charged in the indict[517]*517ment with .killing the deceased with malice aforethought; second, that the homicide was committed in the perpetration of robbery; and that, as the court submitted the case upon both theories, it is impossible for any one. to say for what crime the appellant was convicted.
It" will be observed that the indictment follows closely the form provided by the statute. Section 17 of the act relating to crimes and punishments provides that: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree.” (Comp. Laws, 4672.)
Under this statute and the indictment as drawn, defendant could be convicted of either wilful, deliberate, and premeditated killing, or of a killing committed in the perpetration of a robbery, whether it was or was not wilful, deliberate, and premeditated. If the defendant in advance planned or intended to kill in order to accomplish the robbery, and in pursuance of that intent did kill the deceased, he was guilty of both a wilful, deliberate, and premeditated killing, and of a killing in the perpetration of a robbery. These are not separate statutory homicides, and if the jury believed, beyond a reasonable doubt, that the defendant was guilty of killing in either one or both of these ways, they were justified in the rendition of the verdict carrying the extreme penalty. If the indictment had unnecessarily charged that the killing was committed in the perpetration of a robbery, and there had been no evidence indicating that it was committed in such perpetration, proof that the killing was wilful, deliberate, and premeditated would have been at variance with the allegation in the indictment, and an instruction in such a case, based upon the two theories of wilful, deliberate, and premeditated killing and of a killing in the perpetration of robbery, and directing the jury that they could convict upon either, would have been erroneous.
[518]*518The evidence in this case is stronger than that on which Dr. Crippen was recently convicted and promptly hanged in London, and it is'sufficient to justify the conclusion that the killing was done wilfully, deliberately, and premeditatedly for the purpose of accomplishing robbery. But if the evidence indicated that there was a robbery, and there was no evidence indicating a previous intention to kill, nevertheless the killing committed in the perpetration of the robbery would be presumed to have been wilful, deliberate, and premeditated.
In State v. Lindsay, 19 Nev. 50, 3 Am. St. Rep. 776, Justice Hawley, speaking for this court, said: "Under this statute there are certain kinds of murder which carry with them conclusive evidence of premeditation, viz, when the killing is premeditated by means of poison, lying in wait, or torture; or when the homicide is committed in the perpetration, or attempt to perpetrate, any of the felonies enumerated in this statute. In these cases the question whether the killing was wilful, deliberate, and premeditated is answered by the statute in the affirmative, and, if the prisoner is guilty of the offense charged, it is murder in the first degree. (State v. Hymer, 15 Nev. 50, and authorities cited.)"
It has often been held that a felony and a homicide committed in perpetrating or attempting to perpetrate it, together, constitute the one crime of murder and may be charged as such and in the same manner as ordinary murders are alleged, and that it is not necessary to charge in the indictment that the murder was committed in the perpetration of another crime in order to introduce testimony showing that a felony was committed in addition to it, and that, under an indictment charging murder in the ordinary form and proof that it was committed in the perpetration of a felony, malice, deliberation, and premeditation are implied. (State v. Meyers, 99 Mo. 107, 13 S. W. 516; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757; State v. Covington, 117 N. C. 834, 23 S. E. 337; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; State v. Johnson, 72 [519]*519Iowa, 393, 34 N. W. 177; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Titus v. State, 49 N. J. Law, 36, 7 Atl. 621.)
In State v. Foster, 136 Mo. 653, 38 S. W. 721, it was held that, while the charge that a homicide was committed in an attempt to perpetrate a robbery is unnecessary, it will not vitiate an indictment for murder in the first degree, and that in such a case the indictment may be drawn in the common form.
In Reyes v. State, 10 Tex. App. 1, it was held that evidence tending to show that the killing was done in the perpetration of arson, rape, robbery, or burglary is admissible as part of the res gestee on the trial under an indictment charging murder with express malice aforethought.
In People v. Flanagan, 174 N. Y. 357, 66 N. E. 988, on an indictment for murder in the first degree, a conviction for murder perpetrated while committing a felony, although not specially pleaded, was sustained, and it was said- that deliberation and premeditation need not be found.
In State v. McGinnis, 158 Mo. 106, 59 S. W. 83, it was held that it is proper in a trial under an indictment which only charges murder to instruct the jury that, if the homicide was perpetrated in an attempt to commit robbery, the defendant was guilty of murder in the first degree.
In State v. Weems, 96 Iowa, 428, 65 N. W. 587, the indictment was in the usual form and without averments as to the murder having been committed in an attempt to perpetrate robbery, and it was held proper to instruct the jury that, if two or more persons conspire to commit robbery, and in pursuance of such conspiracy they or either of them kill a human being, it is murder.
In State v. King, 24 Utah, 483, 68 Pac. 418, 91 Am. St. Rep. 808, the information for murder contained the usual charge regarding malice and premeditation, but did not mention robbery. It was held sufficient to charge murder in the first degree; and that evidence to show that it was committed in the perpetration of a robbery was properly admissible; and that when two or more persons [520]*520associate together to rob another, and he is killed by one of them, the act is that of each and all of the conspirators, and all are chargeable therewith. (State v. Schmidt, 136 Mo. 652, 38 S. W. 719.)
It is claimed that some of the instructions given by the court were erroneous, and more particularly the following: "The jury are instructed that in this case evidence of flight has been introduced. You are instructed that the flight of a person immediately after the commission of the crime, or after a crime has been committed with which he is charged, is a circumstance in establishing his guilt, not sufficient in itself to establish guilt, but a circumstance which the jury may consider in determining his guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the evidence introduced in the case.”
It is said that by the first sentence of this instruction the court charged the jury as to a matter of fact. If it be conceded that this is true, and that the language used would have constituted reversible error if there had been a conflict in the evidence as to whether the defendant fled from the place of the crime, it is not improper for the court to assume and state to the jury that there was evidence of flight, or that defendant had fled when by his own testimony and by the opening statement of his counsel it was admitted that he had fled. It is not error for the court to assume as true facts which are directly admitted by both parties in the case. Under a similar principle of law, the admission of a paper relating to the number of the watch, to which no objection or specification of error appears, was harmless, whether properly proven under the oath of any one knowing it was the correct number, because the effect of the defendant’s testimony and the defense interposed amounted to an admission that he was in the possession of the watch of the deceased, and defendant sought to excuse his possession of the watch by his statement on the stand that Ochoa [521]*521had taken his coat and had left Ochoa’s, in the pocket of which he found the watch.
■ Strong objection is also taken to the following instruction: "The jury are instructed that an accessory is he or she who stands by and aids, abets, or assists, or who, not being present, aiding, abetting, or assisting, hath advised and encouraged the perpetration of the crime. He or she who thus aids, abets, or assists, advises, or encourages, shall be deemed and considered as principal, and punished accordingly. You are further instructed that no distinction shall exist between an accessory before the fact, and the principal, or between principals in the first and second degree, in cases of felony, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall be indicted, tried, and punished as principals.”
In the specification of. error relating to this instruction it is said: "No objection is made to the form of the indictment, but under the proof in this case there is some evidence tending to prove that the defendant, if guilty at all, committed the crime while in the perpetration of the robbery of the deceased. This is a separate and distinct offense from the crime of murder in the first degree. The instruction, therefore, is inconsistent and confusing and is prejudicial to the defendant, in that it so conglomerates the two issues raised — that of murder in the first degree and that of murder in the perpetration of robbery — it is impossible to determine from the instruction its meaning. If the court intended to present this case to the jury on the two theories suggested therein, in order for the verdict to stand and the instruction to be applicable to the facts, it was necessary for the jury to believe from the evidence, beyond a reasonable doubt, that both theories contained in this instruction were proven.”
The first paragraph of this instruction is a copy of section 10 of the criminal practice act (Comp. Laws, [522]*5223995), the other paragraph is a correct construction, as held by former decisions of this court, and what we have already said regarding the theory of two offenses is applicable. (State v. O’Keefe, 23 Nev. 127, 62 Am. St. Rep. 768; State v. Chapman, 6 Nev. 320; State v. Jones, 7 Nev. 408; State v. Hamilton, 13 Nev. 386.)
In the record on appeal it is specified that the court erred because it failed to instruct the jury upon other matters; but it does not appear that any further instructions were drawn or requested, or that any exception was taken in regard thereto. As no objection or exception was taken in the district court to the testimony of one of the witnesses, now claimed to have been erroneously admitted, that Ochoa was well liked and that defendant was quiet and not well liked, although the witness never knew of his having any quarrels, we do not determine whether it was proper evidence. If an objection had been made to its admission, the objection might have been sustained. This court has often held that in both civil and criminal cases the particular ground of an objection or exception to the admission of evidence must
be stated. (Crim. Prac. Act, sec. 421, and cases there cited; State v. Jones, 7 Nev. 408; State v. Murphy, 9 Nev. 394; Lightle v. Berning, 15 Nev. 389; Sharon v. Minnock, 6 Nev. 377; Schwartz v. Stock, 26 Nev. 150; State v. Williams, 31 Nev. 377; Finnegan v. Ulmer, 31 Nev. 525; McGurn v. McInnis, 24 Nev. 370; Wigm. Ev. 20.)
The judgment is affirmed, and the district court is directed to fix a time and make an order for carrying its sentence into effect according to law.
Sweeney, J.: I concur.