State v. Millain

3 Nev. 409

• Court: Nevada Supreme Court
• Decided: January 1, 1867
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] "It is good cause of exception to a grand juror, that he has formed and expressed an opinion as to the guilt of a party whose case probably will be presented to the consideration of the grand inquest." (People v. Jewett, 3 Wend. 313; citing 6 Wend. 386; Wharton Am. Crim. Law, 120; 6 Serg. Rawle, 395; Burr's Trial, 38.)

"By the common law the grand jurors are to be good and lawful men — that is, men free from all objections, and who might serve as petit jurors in the case." (See 1 Chitty Crim. Law, 307.)

"There exists the same right for challenging for favor the grand jury as the petit jury." (1 Burr's Trial, 38.)

By statute of this State of 1866, p. 49, challenges to individual grand jurors are limited to four, provided that act be constitutional. The fourth subdivision of that statute reads as follows:

"That he is prosecutor on a charge or charges against the defendant." The question for consideration is: What did the Legislature mean by the term "prosecutor"? It is quite clear that they did not mean the people of the State, in whose name all criminal proceedings are prosecuted, nor the prosecuting attorney of the county; but did mean such person or persons upon whose evidence the prosecution was to be based.

There is no reason in the position that any one person, who is to be called as a witness for the State, should be allowed on the grand jury any more than another; hence the statute means, if it means anything at all, to exclude all that class of persons from sitting on a grand jury during the investigation of a case in which they are, or expect to be, witnesses for the State.

D. Black, the grand juror in this panel challenged, clearly comes within the rule; hence the Court erred in not allowing the challenge of this juror.

The common law authorities do not distinguish between causes of challenge to grand or petit jurors. (5 Bacon's Abridge. 353.)

II. The Court erred in not sustaining the defendant's challenge to the panel of trial jurors, as the names were not put in the box and drawn in open Court as required by law. (Statutes of 1866, Sec. 6, p. 192.)

III. The Court erred in refusing to allow the challenges interposed by the defendant for implied bias to the jurors named, respectively: D. Black, B. Potter, J. Monahan, L.E. Morgan, L. Alexander, and L.D. Young. (Stat. 1861, p. 470, Sec. 340; 6 Cowan, 562, ex parte Vermilyea; People v. Gehr, 8 Cal. 362;People v. Reynolds, 16 Ib. 132; People v. Woods, 29 Ib. 636.)

IV. The Court erred in refusing to grant a motion for change of venue. (Stat. 1861, p. 407, Secs. 306 and 308.)

This statute is a literal copy of the California Act, and has been construed by the Courts of that State to vest the Court with a reasonable discretion in the premises; an abuse of that discretion is error. (People v. Mahoney, 18 Cal. 186.)

"The Court's discretion is to be exercised within well established legal rules. It is a sound and equitable, and not an arbitrary discretion, it is required to exercise." (People v.Vermilyea, 7 Cowen, 398; Graham Waterman on New Trials, 1001;People v. Webb, 1 Hill, 182.)

We challenge the examination by the Court of the affidavits filed in support of this motion, and the admissions of record connected therewith made by the prosecuting attorney, by the light of the authorities which we have cited; and with all due respect we assert as a fact, that the books will fail to furnish a parellel case where the motion has been refused and the action of the Court sustained.

We especially call the following fact to the attention of the Court, to wit:

No counter showing was made upon this motion, therefore allmatters averred in support of it, and admitted in connection withthose averments are to be taken strictly as true.

There can be no doubt but that the Court upon the appeal possesses a revisory power over the action of the Court below in this matter. (People v. Lee, 5 Cal. 353; 5 How. Pr. 25.)

V. The Court should have sustained the demurrer to the indictment in this action.

We respectively insist that the indictment is insufficient to warrant or sustain a conviction for felony, wherein it fails to charge Julia Bulette was a human being, or in the peace of the State at the time of the killing, or that the defendant did the act with malice aforethought, express or implied. It does not contain a statement of acts constituting the offense, or the particular circumstances of the offense charged. (Practice Act, 234-6, 286, 430, 431 and 433.)

The indictment should state the facts upon which the prosecution relies, so that the accused may be prepared for his defense. (6 Cal. 236 and 208; Chitty's Crim. Law, 172, 228, and 281; Wharton's Crim. Law, 873; Bishop's Crim. Law, 332; 9 Cal. 31 and 54.)

A party indicted must be brought within the very letter of the Statute. (2 Barber on Crim. Practice, p. 547; Heydon, Case 4, Co. A.)

"The following averment," says Barber, "is one of the substantial averments: `In and upon one E.F.'" (Page 54, Sec. — Barb. C. Prac.; see also, Form of Indictment for Murder, Sec. 541, Id.)

It will be seen that this contains an averment equivalent to charging that it was a human being. The reason why the term "human being" is not embraced in Common Law indictments for murder is because the Common Law definition of murder does not contain the term "human being." (1 Archbold, 831.)

The difference between the Common Law definition and the statute definition is this: at Common Law the term "a reasonablebeing alive" is used, instead of the term "human being" which is in our statutes; hence the Common Law indictments mention the term "did live." (2 Bishop Cr. Prac. 543.)

As counsel, we feel safe in saying that no precedent at law or in practice can be found to justify omitting in an indictment for murder the averment that it was "willfully and maliciouslydone." (State v. Foults, 4 Green, [Iowa] 500; 23 U.S. Dig. 289.)

We doubt that our statute means (critically reviewed) to warrant the averment; but if it is so intended we dispute its constitutionality and binding force, for the reason that murder being an offense at Common Law, the offense must be set outfully as at Common Law. (1 Bishop Cr. P. Sec. 348; People v.Enoch, 13 Wend. 159.)

Technical terms used in a statute must always be set forth in an indictment; but setting them forth alone is not always sufficient. (1 Bishop Cr. P., Sec. 373.)

The indictment must charge an intent to kill. (10 Ohio [N.S.] 459 and 598; 21 U.S. Dig. 283, Sec. 14; 2 Bishop Cr. P., Sec. 280.)

VI. The Court erred in refusing the motion in arrest of judgment and for a new trial, as the indictment did not charge the crime of murder in the first degree, and did not warrant the verdict rendered in this case and the judgment pronounced thereon.

Murder in the first degree is defined by our statute to be "all murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, 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 guilty of murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree."

Now as this indictment fails to charge this defendant with having committed the crime of murder by means of poison, or lying in wait, or torture, or in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, and inasmuch as the indictment fails to charge him with any willful, deliberate, or premeditated killing, or that it was feloniously done, we hold that it is self-evident therefrom that it does not charge the defendant with the crime of murder in the first degree.

Section 8 of Article 1, State Constitution, and Article V amendments to the Constitution of the United States, provide that no person shall be tried for a capital or other infamous crime, unless on a presentment or indictment of a Grand Jury, etc. These words were used by the framers of those instruments in their common law sense; hence the Legislature of our State has no power to provide that an indictment shall be other than what the common law says is an indictment. For definition of Indictment at common law, see 1 Bouv. L. Dic. title "Indictment;" 2 Bishop Cr. P. Secs. 562-597, inclusive; 23 U.S. Dig. 289, Secs. 6, 7, 8 and 9, citing 4 Green's [Iowa] 500; 1 Wharton Am. Cr. Law, 400; Chitty Cr. Law, 242 and 3. The words "malice aforethought" do not signify that the person killing meant to kill. (2 Bishop Cr. P. 592, 561; 2 Bishop Cr. Law, Sec. 742.) The words "malice aforethought" do not embrace the words in substance "deliberate and premeditated." (23 U.S. Dig. 289, Sec. 9; Secs. 234 and 236 Criminal Practice Act, Statutes 1861, 460 and 461.)

VII. The evidence in this case being wholly circumstantial, did not warrant the verdict. Taking all the evidence as true, and but one fact was established beyond a reasonable doubt in the case, and that fact was, that the defendant was found in possession of some of the property of the deceased.

For the sake of argument now, taking as correct, without qualification, the rule laid down by Greenleaf in his work on Evidence, Vol. III, Sec. 31, embodied by the Court in its charge to the jury in this case, (pp. 125 and 6) and tried by that rule, we propose to show the verdict was unwarranted, and the Court erred in not arresting the judgment and granting a new trial.

It must be admitted under the rule above cited, the mere possession of the goods of the deceased, uncorroborated by any other evidence tending to show the defendants guilt, is in itself insufficient to warrant a verdict.

Now, by the light of the rule above quoted, let us examine and see what other facts and circumstances it was necessary for the prosecution to establish in order to warrant the verdict in this case. And then let us farther examine and see if such facts or circumstances were proven.

The rule says: In connection with possession it behooves the prosecution to add other proof "such as the previous denial of the possession by the party charged, or his refusal to give any explanation of the fact, or giving false or incredible accounts of the manner of the acquisition, or that he has attempted to dispose of it, or to destroy its marks, or that he has fled or absconded," etc.

An examination of the record will show that there is not one scintilla of testimony tending to prove either of these circumstances, except the one of his attempted disposition of the goods. He neither refused to give an explanation of his possession; nor did he give any false or incredible account of the manner of his obtaining them; nor did he attempt to destroy any marks upon them; he did not flee or abscond.

Now we take it for granted that it is a correct rule that a circumstance proven to have occured, which tends to prove the innocence of the party accused, must be allowed to weigh as strongly in his favor as it would be allowed to weigh against him if tending to prove his guilt.

In other words, if evidence tending to show that this defendant after this murder fled or attempted to flee would be evidence of his guilt, certainly the evidence of his remaining would tend to prove his innocence. And we also contend for the rule that where one circumstance is proven which tends to show guilt, and another which tends to show innocence, they should be weighed one against the other, and both be given due consideration.

In this case the circumstances of the attempted disposition of the goods by the defendant, to our minds tends rather to prove the innocence than the guilt of the defendant in this case, he having attempted to make such disposition of the goods in this community.

Indeed, the whole circumstances in this case exclusive of the possession of the property indicate insanity or innocence, rather than sanity or guilt. That this defendant should have remained in the community where he had committed such an atrocious crime, when there was no obstacle to his flight, and kept in his possession the only evidence of his guilt concealed only in an insecure trunk, and that kept in a room where all had access, in a public building, covered with a cloth upon which was his own name in indelible ink; the disposing of the dress-pattern in Gold Hill, his attempted disposition of it in a house of ill-fame in the same place, where he might have reasonably anticipated it would have been recognized, that house being frequented by the consorts and companions of the deceased; his sale of the diamonds at the leading jewelry store in the City of Virginia; and his pledging the deceased's watch at a pawn-broker's in the same town, leaving it within a stone's throw of the identical place where the murder was committed, and leaving it unredeemed, with the knowledge that it would be placed in a public window for sale; form a combination of circumstances that irresistibly leads the mind to the conclusion, either that John Millain was a fool or insane, or that he was the dupe of the real murderer, and that without knowledge other than that the goods were perhaps improperly obtained, to share in the fruits he was induced by the real murderer to take charge of and attempt to dispose of the same.

Such evidence is certainly far from sufficient to satisfy the unbiased mind that John Millain was the murderer of Julia Bulette. It certainly entirely fails to exclude any other reasonable hypothesis than that of the defendant's guilt; on the contrary, all of the circumstances proven may be true, and the defendant not only possibly but probably innocent.

VIII. We now come to a consideration of that portion of this case which furnishes us in our judgment with an undoubted right to a reversal of this judgment.

The subject to which we allude is, the charge of the Court to the jury, and its refusal to give certain instructions asked by us.

The charge is insufficient within itself as a whole — inconsistent and illogical in detail — pregnant with errors of law, and a usurpation of power in usurping the functions of the jury in instructing them in matters of fact.

We here extract several portions of the charge, and present them to this Court in proof of our assertions.

In the charge the Court uses this language: "Your verdict must be in writing, guilty of murder in the first degree as charged in the indictment, or guilty of murder in the second degree, or not guilty." (See Record, 128.)

In another portion of the charge this language occurs:

"If you believe from the evidence, that about the nineteenth day of January last, at Virginia, Storey County, that the defendant with malice aforethought, either express or implied, and with deliberation and premeditation, did unlawfully kill Julia Bulette, with intent to take her life, it will constitute murder of the first degree, and you should so find; otherwiseyou will acquit." (See Record, 128.)

In another place the Court uses this language in its charge:

"If you believe the defendant guilty of an offense, and doubt as to the degree, you can only convict of the lowest degree of crime within the grade of the one charged, murder in the firstor second degree." (See Record, 124.)

Here we have an array of palpable errors of law, for in direct terms the jury are instructed in one place that manslaughter is not a crime in the grade of murder, and not included in an indictment for murder. That this is error, see People v.Dolan, 9 Cal. 583; 2 Bishop's Crim. Pr. 584 and 590; 10 Ohio N.S. 459; 21 U.S. Dig. 284, Sec. 40.

Under this charge the jury were precluded from finding a verdict for manslaughter, and even of murder in the second degree.

The force of this instruction was to direct the jury to send the defendant to the gallows, or the street; all other alternative was denied the jury if they obeyed the charge.

The defendant left to the terrible stake of death or liberty, with no hope of the latter.

Degree is a question of fact. (People v. Belencia,21 Cal. 544.)

The Court also erred in giving the following instruction unexplained:

"In the first place, if the fact of possession stands alone, wholly unconnected with any other circumstances, its value or persuasive power is very slight; for the real criminal may have artfully placed the articles in the possession or on the premises of an innocent person, the better to conceal his own guilt.

"It will be necessary for the prosecutor to add the proof of other circumstances indicative of guilt, in order to render the naked possession of a thing available to a conviction; such as the previous denial of the possession by the party charged, orhis refusal to give any explanation of the fact, etc." (See Record, 126.)

This language unexplained led the jury to conclude that the defendant's failure to testify and explain these things when the law held out to him an opportunity to do so, accompanied by proof of the possession, would warrant them in finding a verdict of guilty. Thus unexplained it fairly overcame that portion of the charge where they were instructed that the failure of the defendant to testify should not be considered by the jury as an evidence of guilt. This made the charge self-contradictory, and it is fairly inferable the jury were misled by it, and under it were induced to find the defendant guilty from his failing to testify. However correct such doctrine may be at common law, it is clearly inapplicable under our statute, and that it did the defendant in this case gross injustice there can be no doubt.

In another place in the charge the Court uses this language:

"It devolved upon him to explain and account for such possession by him, etc."

Now we ask, what other construction would the jury give to this language than that the Court meant to instruct them that it devolved on the defendant to explain on the stand, as awitness, how he became possessed of these things.

This charge in many portions is violative of Art. VI, Sec. 12, of our State Constitution, which provides that "Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law." (See also Stats. 1864-5, 113, Sec. 23 — to same effect.)

We call attention to the following portions of the charge:

"The testimony in this case tends to show the property of the deceased, or some portion of the same, in the possession of the defendant, at a time subsequent to the alleged murder, and at a quite recent date," etc. (125.)

Also in another portion of the charge, this language occurs:

"The distinction between murder of the first or second degree is quite nice. I will briefly state such distinction, although from the testimony I apprehend you may conclude that the defendant was either guilty or murder of the first degree, or innocent." (123.)

Now we submit, that we here find the Court in its charge informing the jury what is proven, and instructing them relative to the degree of crime of which they should find the defendant guilty under the indictment; for it is an axiom of the law that it will not permit that to be done indirectly which it forbids to be done directly. (People v. Ybarra, 17 Cal. 170, 171;People v. Gibson, Id. 284, 285; 20 U.S. Dig. 481, Secs. 126, 134; 21 Id. 284, Sec. 40.)

The following portion of the charge is erroneous:

"Murder of the first degree consists of a willful, premeditated, unlawful killing. The intent to kill must exist. This intent may be inferred from the circumstances."

The error herein consists in giving a wrong definition to the course of murder in the first degree, and in the use of the term "inferred." (See 21 Cal. 546.)

Another error in the charge is, in the use of the following language:

"This intent need not have existed for any given length of time before the killing. It is sufficient, the killing being unjustified or unexcused by the circumstances, if it be formed at the instant of killing." (4 Green, Iowa, 500; 23 U.S. Dig. 290, Sec. 23; 1 Park Crim. 347; U.S. Crim. Dig. 326, Sec. 580.)

Also the following portion of the charge was erroneous:

"By reasonable doubt is ordinarily meant such a one as would govern or control you in your business transactions or the usual pursuits of life." (Jane v. Commonwealth, 2 Met. 30; 20 U.S. Dig. 482, Sec. 142.)

The Court also erred in refusing to give the instructions asked for by the defendant in relation to the weight to be given to the proof of his having in his possession the goods of the murdered woman.

The instructions clearly state the law, and there is no justification in the reply that the same law was substantially stated in the charge. (People v. Ramirez. 13 Cal. 172.)

In conclusion, we have simply to state that, although it may be true that the defendant in this case is a murderer, is it likewise true hat he has been legally convicted? And we present his case to this Court, reddened as he may be by blood, with a firm conviction that this Court will yield to no popular clamor, but will intelligently and justly administer the law in this case as in all others, which being done, we feel confident the Court must award a new trial.

Pitzer, for Respondent, filed the following brief:

The first objection to the record is the challenge to the grand juror D. Black, for bias against the defendant.

The objection is not well taken. (See Statute 1866, page 49, Section 180.)

As to the challenge to the panel: it does not specify the grounds of the challenge, neither was it in writing. (See Statute 1861, page 468, Section 324.)

The demurrer was properly overruled by the Court below. The indictment strictly conforms to Statute 1861, pages 459 and 460, Sections 234 and 235, as amended by Section 6, page 126, Statutes 1867.

The objection as to the killing of a human being is refuted by charging the defendant with murder. For definition of "Murder," see Statute 1861, page 68, Section 15.

The third point of error relied on is the overruling of the motion for a change of venue. The error is not well assigned; it being a discretionary power of the Court will not be reviewed upon appeal, except for gross abuse, which does not appear to be the case in this instance.

The fourth error assigned is not well taken: First, because the objection was oral. (See Statutes 1861, p. 468, Sec. 324.) Secondly, the objection does not point out the error relied on.

The fifth error assigned — challenge for implied bias — is not well taken: First, the objection to D. Black, B. Potter, J. Monahan, L.E. Morgan, L. Alexander and L.D. Young, is upon the ground that they had formed or expressed an opinion or belief touching the guilt or innocence of the defendant. The evidence of said jurors, as appears of the record, shows that they had not formed an unqualified opinion or belief that the defendant was guilty or not guilty, and therefore the challenges for implied bias were properly overruled. (See Statutes 1861, p. 470, subd. 8 of Sec. 340; also The People v. Reynolds,16 Cal. 128; People v. Vermilyea, 7 Cowen, 121 and notes.)

The sixth error assigned is not well taken. The instructions of the Court conform to law, and do not instruct as to facts.

The first and third instructions asked by defendant's counsel are embodied in the instructions given by the Court.

The second and fourth instructions offered by defendant's counsel were properly refused by the Court, not being law.

The Attorney General also argued the case orally for the Respondent. This is a case of conviction for murder in the first degree. The several grounds of error which the appellant assigns we will notice seriatim.

The first point made is, that the Court below erred in failing to sustain his challenge to a grand juror named D. Black. Black, on an examination touching his qualification as a grand juror to act in this case, said substantially that he had heard of the charge against the prisoner, and had formed an opinion touching his guilt or innocence; that perhaps he might be called as a witness in the case to identify a certain piece of property as having belonged to deceased; that he was not a prosecutor in the case. The defense objected to the grand juror participating in the examination of the charge against him, for two reasons: First, because he was a witness for the prosecution; and second, because he had already formed an opinion as to his guilt or innocence; and upon the ruling of the Court that Black was a competent juror to investigate the charge and join in finding an indictment, excepted.

In argument it is contended that defendant was just as much entitled to an impartial grand jury in making the preliminary examination on which the indictment was found, as to an impartial jury to try the charge after it was made. In support of this proposition we are referred to several authorities. The opinion of Chief Justice Marshall in the Burr trial is perhaps the authority entitled to most weight on this point. We have no copy of Burr's trial in this place, and there is none in the State that we are aware of. We cannot, therefore, have the means of ascertaining the grounds on which that great jurist based his opinion. But as the Congress of the United States have never, so far as we are aware, passed any law touching the qualification of grand jurors, we presume the opinion or ruling in that case must have been based either upon common law principles or upon the ground of natural justice. This latter ground was probably the one on which the Chief Justice acted. In the case of The People v. Jewett, 3 Wendell. 313, the New York Court seems to have followed the rule laid down by Marshall; or to speak more accurately, say they would have followed the rule if the objection to the grand juror had been interposed at the proper time. These are the only cases we find supporting such an objection to a grand juror, except in those cases where there is some statute authorizing a party accused to interpose a challenge to grand jurors on account of bias.

When the ruling of Chief Justice Marshall in the Burr trial was called to the attention of the Supreme Court of Massachusetts, that Court not only refused to be governed by it, but expressed their strong disapproval of the case, and thought it the only case of the kind to be found in the books. They refused to remove a prosecutor from the panel of a grand jury before whom a capital case was to be investigated. (See Tucker's case, 8 Mass. 285-6.)

We think at common law a grand juror might be the prosecutor, the only witness in the case, and still participate in finding the bill. (See Wharton's Criminal Law, Sections 453 to 458, and notes.) But whatever may have been the rule at common law, or whatever the principle of natural justice, our statute fixes the disqualifications, and the only disqualifications, of grand jurors. The Statutes of 1866, p. 49, amending a former Act, provide that "a challenge to an individual grand juror may be interposed for one or more of the following reasons, and for no other: First, that he is a minor; second, that he is an alien; third, that he is insane; fourth, that he is the prosecutor upon a charge or charges against the defendant."

It is not pretended that this grand juror is shown to have labored under any of the disqualifications here mentioned, except as to that of being a prosecutor. We cannot conceive that there is anything in the record tending to show that he was a prosecutor. Bouvier defines a private prosecutor to be "one who prefers an accusation against a party whom he suspects to be quilty." This is a very correct definition, and certainly is not broad enough to include a mere witness in the case, who is not shown to have taken any part in setting a prosecution on foot. A party who voluntarily makes an affidavit to procure the issuance of a warrant to arrest a party whom he accuses of crime is properly a prosecutor. So too a party who voluntarily procures permission to be sworn and go before a grand jury to testify as to any alleged crime, may be held to be a prosecutor. But a party who merely appears in response to a subpoena issued at the instance of the grand jury or the prosecuting attorney, cannot be held or treated as a prosecutor. He is merely a witness, and nothing more. We see no valid objection to the grand juror.

The second assignment of error is in this language:

"The Court erred in not sustaining the defendant's challenge to the panel of trial jurors, as the names were not put in the box and drawn in open Court, as required by law." And the part of the statement in support of this error is as follows: "The Clerk of said Court, in drawing the names of said seventy-five jurors from said jury box — pursuant to the order therefor — drew the said seventy-five names from the jury box in the Clerk's office, in the presence of the Judge of the Court."

Whilst this statement shows that their names were drawn from the jury box in the Clerk's office, it does not show that they were not drawn in open Court. The Court may have been in session in the Clerk's office. The Clerk's office and court-room may have been one and the same, or being in the same building, they may by the opening of a door or the throwing open of a partition, have been all thrown into one room. There is not sufficient in the record to show what were the real circumstances of the case. If the drawing took place whilst the Court was in session, and in the presence of its officers, consisting of Clerk, Sheriff, attorneys of the Court, etc., it must be held to have been done in open Court, whether in the room where the Court ordinarily transacts its business or any other room in the same building. The record does not affirmatively show error.

The third ground of error is the refusal of the Court below to sustain the appellant's challenge to several jurors for implied bias. Perhaps the strongest case made by appellant on this assignment is the one shown by the examination of D. Black. We will give the most material portions of his examination:

Question. This spring or summer did you read of the apprehension of Millain? Answer. I read of the apprehension and imprisonment; the name I could not tell. I think I heard of it, too.

Q. Did you read the newspaper accounts about the finding the property of the deceased — the silk dresses, the furs, the jewelry, etc., found at the bakery in his trunks? A. I could not say positively whether I heard it or read it. I either heard of it or read of it.

Q. Have you conversed with any person about this man? A. No; I have heard others when I was passing by.

Q. You have heard others express opinions as to whether he was guilty or not? A. I have heard many.

Q. Have you heard persons express opinions about it in whose judgment you place confidence? A. I place confidence in no man's judgment.

Q. No confidence in any man's judgment? A. No one.

Q. You place confidence in your own? A. Sometimes.

Q. Did you read an account published in the newspapers about this man's admitting to the Chief of Police he was guilty? A. I rather thing I have been told that part of it. I might have read it.

Q. Did you believe it when you read it? A. I could not say I believed it.

Q. Did you believe it this far: would you believe it from now on if you should hear it disputed — would your belief tend rather to its truth than its falsity? A. Yes, that much it would.

Q. I ask you if, from reading an account that the defendant had confessed his guilt — if from reading that he had been found with the goods in his possession, and that he had confessed he was guilty — any feeling of bias or prejudice against him was engendered in your mind? A. No prejudice in my mind. Q. Does he occupy the same place in your opinion as any other man in the community? A. Well, I would rather keep him at a little distance.

Q. Why would you rather keep him at a distance? A. Well, it is more or less prejudice.

Q. Have you a feeling of bias or prejudice against this defendant arising from evidence that you believe? A. I have never formed or expressed an opinion as to his guilt or innocence.

Q. Have you an impression he is not guilty? A. Whatever impression I have is against him.

Q. You have an impression against him? A. To a certain extent.

Q. Would it require evidence to remove that impression? A. It certainly would.

Q. So that impression is a belief? A. Yes.

Q. It would require evidence to remove it? A. Yes, sir.

Mr. DeLong challenges the juror for implied bias.

Mr. Pitzer — If you are asked the question if you believe or have an opinion in your mind whether this defendant is guilty or innocent, could you say Yes or No? A. I would not say either — either that he was or was not.

Q. Your mind is in such a state that you cannot believe he is either guilty or innocent? A. Exactly.

Q. How often have you seen the defendant? A. I never saw him before I saw him in Court. I have heard more in Court to-day than I have heard before.

Q. Did that create a bias or prejudice against him? A. It certainly made more or less.

Q. Did you have any feeling or prejudice against him before that? A. Not before I came into Court; not a particle before I came into Court.

Q. Do you feel that, laying everything else aside, you could give this defendant a fair and impartial trial upon the evidence alone? A. I would just pass upon it the same as I would anything else, if I did not know anything about the case.

Q. You say you have no opinion as to whether this defendant killed the woman or not? A. I have not. Q. Upon that subject you have no opinion? A. No, none. Prosecution denies the challenge.

By the Court. — Does that opinion you have relate to the question of the guilt or innocence of the defendant? A. Well, what I have heard in Court to-day would be a belief.

Q. Merely what you have heard in Court to-day — does it arise from that? A. That is all; about the goods being seen in his possession, that brought me to my belief.

Q. Have you any prejudice against the defendant by reason of this indictment? A. Not a particle.

Q. Do you entertain an opinion as to the guilt or innocence of the defendant that would require evidence to remove, from what you have heard today? A. Well, it would take some, no doubt.

Q. Could you give this man a fair and impartial trial, setting aside all you have heard to-day, and try him according to the law and evidence? A. Certainly, I could, according to the law and evidence.

By the Court. — I think he is a competent juror.

The only ground of implied bias claimed by the appellant to have been shown in this case is one which comes under the eighth division or class of causes which the statute says shall be evidence of implied bias. This eighth division reads as follows: "Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged."

These answers are somewhat contradictory, but in our opinion do not show any disposition to conceal the opinions or views of the juror. They rather show that the juror was sometimes rather inaccurate in the use of the English language. They further show that from what the witness had heard before he came into Court he had formed an impression that the prisoner was probably guilty, and that impression was somewhat strengthened by what he had heard the prisoner's counsel say in the course of his examination about prisoner having been found in possession of goods of deceased. And before that suspicion or impression could be removed he would have to hear some exculpatory evidence from the other side. If a mere suspicion of this sort were sufficient to exclude a juror, we do not see how any juror of common intelligence could serve in any given case when the defendant wished to exclude him. A juror being called up and informed that a party in Court has been indicted and stands charged with a certain offense, (if he has heard nothing of the case before) naturally has his suspicions aroused that the party may be guilty, else he would not likely have been indicted. If in addition to this the prisoner's counsel asks if he has not heard or read of certain suspicious circumstances connected with his client's conduct, this suspicion, however slight at first, is thereby naturally increased. Indeed, we can scarcely conceive of a case where an impartial juror could be sworn to try one charged with a grave offense without some suspicion resting in his mind that the prisoner was guilty.

A mere suspicion is not enough to disqualify a juror; it must be a fixed and positive opinion; in the words of the statute "an unqualified opinion or belief." What it takes to constitute "an unqualified opinion or belief," it is sometimes very difficult to determine. Perhaps as good an exposition of the technical meaning of this phrase is to be found in the opinion of Mr. Justice Baldwin in the case of the People v. Reynolds, 16 Cal. 132, as could well be given. From that opinion we quote one paragraph which expresses our views more clearly than we ourselves could express them: "Among the causes of implied bias, is the having formed or expressed an unqualified opinion or belief that the prisoner is guilty, or is not guilty of the offense charged. (Wood's Dig. 296, Sec. 347.) Upon no one question of civil or criminal practice have the decisions of Courts been more in harmonious than upon this question of qualification or disqualification of jurors, arising from the formation or expression of opinion of the guilt or innocence of the accused. We are relieved to some extent of the task of determining the question upon its original merits, for our statute was designed to fix a rule upon this subject. It makes the formation or expression of an unqualified opinion or belief a ground of exception to the juror for implied bias. The only difficulty is to fix the meaning of these terms, `unqualified opinion or belief.' Evidently these terms were used to define the nature of the opinion or belief formed or expressed; to distinguish between a mere hypothetical opinion, or a mere casual impression, and a decided or fixed opinion. The language implies that, to exclude the juror, he must have a settled conviction of the guilt or innocence of the party, or has expressed such a conviction. It does not seem to be indispensable, under this section, that the juror has had the usual, or any means, or opportunities, of arriving at a correct or intelligent opinion upon the subject, if he has formed it or if he has expressed it. Minds are so differently constituted that some men form opinions and very obstinately adhere to them upon slander and insufficient grounds, while others are undecided when sufficient reasons exist for forming them. The statute fixes a standard of its own by which impartiality is approximated as nearly as possible consistently with the effective administration of criminal law. It has declared a test of exclusion for implied bias to be, that the juror has formed or expressed `an unqualified opinion.' We must hold this rule in its simplicity, neither subtracting from it nor adding anything to its requirements. If, for example, the juror has read or heard a statement of the facts of a case, this does not of itself, under the section disqualify him, for it does not follow that he has either formed or expressed `an unqualified opinion.' He may not have formed any opinion at all, certainly not an unqualified one. He may have received an impression, but this impression is not enough to disqualify him. A mere suspicion or inclination of the mind toward a conclusion is not enough; the state of the mind must be more decided. He must have reached a conclusion like that upon which he would be willing to act in ordinary matters. In other words, we repeat, the effect upon his mind must be more than an impression; it must amount to a conviction in order to exclude him for implied bias."

But even with this explanation, as clear and precise as the nature of the subject will admit of, we cannot but admit that many causes might arise where the shades of opinion would be so nice as to render it impossible to arrive at a satisfactory conclusion as to whether the opinion formed by a juror was "an unqualified opinion." Suffice it to say we do not think this juror, or any of the other jurors challenged for implied bias and permitted by the Court to sit in the case notwithstanding the challenges, had formed "an unqualified opinion or belief."

The fourth assignment of error is, that the Court below erred in refusing to grant a change of venue. This motion was founded on three affidavits, and the admission of the District Attorney of certain facts. The substance of these affidavits was as follows: Defendant's affidavit showed that deceased lived in Storey County and had many friends who are now zealous to convict defendant. Some of them have stated defendant should die; that they would hang him if he was not convicted. They have been active in procuring evidence and prejudicing the public mind by spreading false reports as to defendant's admissions and as to other crimes alleged to have been committed by him; that the daily press has prejudiced the public mind by false reports of confessions and slanderous charges of complicity on the part of this defendant in other crimes. These things have, as deponent is informed, produced a feeling of hatred, ill will and vengeance against the defendant, rendering it impossible for him to obtain a fair trial in Storey County.

C.E. DeLong shows that the circumstances of the offense, its enormity, etc., have created great excitement. That he has had good opportunity to observe the public feeling, and he thinks, from the false reports of the newspapers as to the confessions made by defendant, and from the excitement produced by the enormity of the offense, the public have generally settled down into a conviction of defendant's guilt, not only of this, but of other heinous crimes, and thinks he could not have a fair trial in Storey County.

A. Genesy, after showing his means of knowledge, which are considerable, states that he has heard an almost universal expression of opinion in the community of Storey County that defendant was guilty, and thinks he cannot have a fair trial in that county.

Besides these affidavits, the District Attorney admitted the following facts, to be acted upon by the Court as if proved by proper affidavit: "That the Gold Hill `News,' the Virginia `Daily Trespass,' and the `Daily Territorial Enterprise,' were three newspapers, printed and published daily in Storey County, Nevada, and of general and universal circulation in said county; that in each of said papers had been heretofore printed and published full and particular detail of the murder of Julia Bulette; also of the arrest of defendant, charged with the commission of said murder; also full reports of the finding of the goods of deceased in the possession of this defendant, and the recognition of defendant, when in custody, by several citizens, as being the person who had at various times offered to sell to said persons articles of clothing and jewelry recognized as being property of deceased. Also, in said papers, the statements had been printed and published that the defendant, after his arrest, and when confronted with the goods of deceased, had voluntarily admitted to one Edwards, Chief of Police, that he was guilty of said crime of murder. Also a statement of the evidence adduced on the examination of defendant had been by said papers published and circulated generally throughout the county of Storey, and read by the citizens thereof."

The Court, on this showing, overruled the motion of defendant, for the time being, but made the following remarks:

"When overruling said motion the Court informed counsel, that having a large number of jurors in attendance, he would first attempt to empannel a jury; and if from examination of jurors he found that such a bias existed against defendant as to render it quite difficult to obtain a jury, that he would then allow counsel to renew his motion and then would grant it."

The Court finally proceeded to trial without a change of venue, and we are to presume that it was satisfied, from an examination of the jurors in attendance, that a fair and impartial trial could be had in Storey County.

There are few cases that present themselves to Appellate Courts where it is more difficult to determine upon any settled principles or rule of action, than in these cases relating to a change of venue. By all it is admitted that there is a broad discretionary power allowed the Court of original jurisdiction. But whilst that Court has such discretion, it is still a judicial and not an arbitrary discretion. If that discretion is used in an arbitrary and oppressive manner, an Appellate Court is bound to correct the error. But to distinguish between what is and what is not an abuse of that discretion, is often a very nice and difficult question. There are two circumstances, the existence of either of which should entitle the defendant to a change of venue.

The one is the impossibility of obtaining an impartial jury. The other is such a state of public excitement against the defendant, that even an impartial jury would be likely to be intimidated and overawed by public demonstrations against the accused. There is little in affidavits, or admissions of District Attorney, tending to show such a state of feeling in the public mind as was calculated to intimidate the jury. It is true, some friends of the deceased had made threats of violence against the prisoner, but there is nothing to show such friends were either sufficient in number or influence to seriously affect the great body of the people. Indeed, if we can allow that the Judge below was acquainted with the fact, and authorized to act on the knowledge of a fact made sufficiently apparent by the record, that the murdered woman was a cyprian, it should justly have tended greatly to convince him that her friends were not of a class to exercise any great power in forming public sentiment. If there was any great excitement, it must have arisen from the atrocity of the crime rather than any influence exercised by friends of the deceased.

The showing of the defendant established satisfactorily that the circumstances of the murder were widely discussed; that a great deal of testimony and many reports about other supposed circumstances, tending to criminate defendant, were printed, published, and generally read throughout Storey County. This tended to show that it might be difficult to obtain a fair and impartial jury in that county. But it did not show conclusively that it would be so. We think the Court below took the prudent plan of ascertaining that fact. That is, by examining the jurors who were in attendance on the Court. The Court seems to have hesitated, on the production of the affidavits, etc., and to have acted prudently and with due regard to defendant's rights. The motion for change of venue was only finally refused after the Judge had satisfied himself by examination that an impartial jury could be obtained. We cannot say that he abused his discretion or acted unwisely in coming to this conclusion. If we examine the authorities on this subject, we find little that is satisfactory or conclusive. So far as we have examined them, some cases seem to sustain the views above expressed, and none of them are clearly in opposition thereto. In the case of the State of of California v. W.B. Lee, 5 Cal. 353, the Court reversed a judgment against the defendant because the Court below had refused him a change of venue upon a motion sustained only by his own affidavit, expressing the defendant's opinion that he could not have a fair and impartial trial, and showing that over one hundred citizens of the county had united in employing counsel to prosecute.

On the other hand, in the case of the People of the State ofCalifornia v. John Mahoney, 18 Cal. 180, the prisoner showed by his affidavit (uncontradicted) that a few years before that time he had been arrested by an armed body of citizens unlawfully organized into what was called a Vigilance Committee, and placed on board a vessel to be transported beyond the State of California; that on making his escape and returning to San Francisco he was again arrested, and after being kept in confinement for some time, he had a sentence read to him by one of the members of that committee (in effect) of perpetual banishment from the State of California, and threatening him with death if he ever returned. Under this sentence he was sent on board of a vessel in irons and thus transported beyond the limits of the United States. He showed this organization, thus dealing out punishment in violation of law, consisted of about six thousand citizens of San Francisco county; that among the number of that organization was the Judge then presiding in the Court where he was tried. He showed that besides these six thousand enrolled Vigilance Committee men (most of whom were qualified to act as jurors) many other persons sympathized with and encouraged the organization. He pointed out the great prejudice which was excited against himself because of this proceeding against him by the Vigilance Committee. Yet the Court below refused to interfere with the judgment, holding in effect that fused to interfere with the judgment, holding in effect that they saw no abuse of discretion in the Court below.

In the case of The People v. Webb, 1 Hill, New York, the Court before which the trial was pending in an indictment for libel, changed the venue upon a showing that the defendant had taken great pains to prejudice the mind of the public against the prosecutor; that inflammatory articles had been sent by defendant, or through his influence or procurement, not only to others but to three-fourths of the jurors actually summoned to the term of the Court at which the case was expected to be tried. The Court here seemed to have been influenced by the feeling that defendant's conduct in thus attempting to tamper with the prejudices and feelings of jurors was wholly unjustifiable, and therefore yielded the more readily to the solicitations of the prosecutor for a change of venue. Perhaps, had these publications been sent to jurors by others not connected with or influenced by defendant, they might not so readily have assented. Here too the change of venue was granted before trial. It by no means follows that if it had been refused and the trial had resulted adversely to the party asking for the change, the Court would, on review of such case, have reversed the judgment. We have examined many other cases, but none of them, we believe, are more favorable to the views of appellant than two of those we have noticed, neither of which seems to be at war with the views we have expressed.

The next point made by appellant is, that the Court erred in refusing to sustain the demurrer to the indictment.

The body of the indictment (excluding title of Court, caption, etc.) is in the following form: "John Millain, above named, is accused by the grand jury of the County of Storey, by this indictment, of the crime of murder, committed as follows, to wit: `That said John Millain, of Storey County, State of Nevada, on the twentieth day of January, A.D. 1867, or thereabouts, at Virginia City, Storey County, State of Nevada, without authority of law and with malice aforethought, killed Julia Bulette by striking her on the head with a stick of wood, and by choking and strangling the said Julia Bulette with the hands of him, the said John Millain; whereof and by means of the blows, choking and strangling aforesaid, the said Julia Bulette then and there died.'

"All of which is contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Nevada."

This, as a common law indictment, is obviously defective in several particulars. It fails to charge that the alleged killing was felonious. It fails to charge that the defendant did murder Julia Bulette. It fails to charge the felonious, willful, and malicious assault which usually precedes the charge of killing and murdering in a common law indictment.

Indeed its defects as a common law indictment are so numerous, it may be said to contain scarcely anything that a common law indictment should contain. But there was no attempt to make this a common law indictment. It was simply an attempt to follow a form prescribed by the statute. There are, indeed, but two questions for us to consider in connection with this indictment. First, does it conform substantially to our statutory form; and second, had the Legislature power to dispense with the formality of the common law indictment? Our Criminal Practice Act, as at present amended, contains the following sections:

"Section 235. It [meaning indictment] may be substantially in the following form:

"State of Nevada, County of _____. The State of Nevada, plaintiff, against A B, defendant, [for John Doe, whose real name is unknown, defendant]. A B above named is accused by the grand jury of the County of _____ of a felony, [or if of the crime of murder, etc.] committed as follows:

"The said A B, on the _____ day of _____, A.D. 18__, or thereabouts, without authority of law, and with malice aforethought, killed Richard Roe by shooting him with a pistol (or with a gun or other weapon, according to the facts)."

"Section 236. The indictment must be direct, and contain as it regards: first, the party charged; second, the offense charged; third, the particular facts of the offense charged — so far as necessary to constitute a complete offense — but the evidence tending to prove the charge need not be stated. It shall not be necessary to set forth in the indictment the character of the weapon used, nor that any weapon was used in the commission of the offense, unless the using of such weapon is a necessary ingredient in the commission of the offense."

"Section 244. No indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matters of form which shall not tent to the prejudice of the defendant."

This indictment certainly contains all that the statutory form requires, and indeed more than that form requires. The form omits (this was undoubtedly an oversight of the draftsman) to show the place of killing. This indictment contains it. The form ends with describing the means used to produce death. This form charges that death was the result of the use of this means. Then in two respects it is a much better indictment than the statutory form requires. The section following that in which the form is given, requires the indictment to show by positive averment the following things: First, who is the party charged? Here John Millain is the party charged in direct and positive language. Second, the offense with which the party is charged. Here the offense is distinctly charged to be murder. Now as murder is an offense clearly defined in the statute, it cannot be questioned that the offense is clearly charged. The only other requirement of this section is: that "the particular facts of the offense charged, so far as necessary to constitute a complete offense," be contained in the indictment. This latter clause might admit of interpretations widely variant. A stickler for old common law forms might well say: "The particular facts of the offense charged could only be shown by stating them with all the particularity required in a common law indictment." One more imbued with the spirit of modern innovation might well say that an indictment in this form was sufficient to comply with this requirement:

"UNITED STATES OF AMERICA, | INDICTMENT. State of Nevada, County of Storey. |

In the District Court of the First Judicial District.

At a term begun and holden at the Court House in Storey County, on the first Monday of June, in the year of our Lord one thousand eight hundred and sixty-seven, and continuing in session at the time of finding this indictment. Present — Hon. RICHARD RISING, presiding Judge. The State of Nevada, Plaintiff, v. JohnMillain, defendant.

"Defendant, John Millain above named, is accused by the grand jury of Storey County of the crime of murder, committed as follows:

"The said John Millain, on the twentieth day of January, 1867, murdered Julia Bulette of the City of Virginia, in Storey County, in the State of Nevada, by striking her with a stick and choking her with his hands."

If the language above used means anything, it means: first, that John Millain is a reasonable human being, for only such reasonable human beings can commit murder; second, that Julia Bulette was a human being, for human beings only can be murdered under all definitions of that word; third, Millain must (the indictment being true) have killed Bulette — there can be no murder without killing; fourth, the killing must have been unlawful; for lawful killing is not murder; fifth, it must have been felonious, for no killing is murder or manslaughter unless it be done feloniously; sixth, it must have been done with malice aforethought, for this is an ingredient in all murder. The time and place are also stated, and the instruments or means used to produce death.

What other facts need be alleged or proved to show the commission of the offense charged? Now, whilst we would not be considered as sanctioning such a form as we have given above, we have no hesitation in saying that, if the Legislature had prescribed such a form in Section 235, we would have been perfectly justifiable in holding that there was no discrepancy between that and Section 236. The Legislature has prescribed a form, and this indictment has followed that form in all its parts, only making two additions to the prescribed form, both of which tend to make the indictment more perfect. They certainly do not detract anything from its certainty and precision. We think this indictment complies with all the requirements of the statute.

In regard to the power of the Legislature to make such an indictment sufficient, we can see no constitutional objection. The power of State Legislatures to prescribe the method of proceedings in civil and criminal Courts, is universally conceded. The Constitution of the United States, and also of our own State, contains a clause to this effect: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury." This clause of the Constitution would not prevent the Legislature from authorizing the trial of criminals upon the mere presentation of a grand jury. A presentment at common law was a mere informal statement of a grand jury (not prepared by the law officer of the (Court) calling attention to the existence of some violation of law which the jury might think needed correction. An indictment is defined to be a "written accusation of one or more persons, of a crime or misdemeanor, presented to, and preferred upon oath or affirmation by a grand jury legally convoked." Now as the Constitution only requires presentment or indictment before trial for a capital offense, it did not intend thereby to prevent the Legislature from prescribing how the grand jury should form their indictments, but simply that such a body should in some form express their approbation of the prosecution, before a party could be put on his final trial for a capital or other infamous offense.

The next point, and perhaps the most important one made by appellant, is this: that the Court below should have arrested the judgment, because the indictment was not an indictment for murder in the first degree, and therefore did not sustain the verdict of the jury. This brings up the question, whether murder in the first degree and murder in the second degree are two distinct offenses, requiring separate and distinct indictments, or whether they are both but one offense, requiring a single form of indictment? The appellant contends that they are two separate offenses. That murder in the first degree contains certain elements of crime which do not necessarily enter into the simple crime of murder, and that therefore no man can be convicted of the crime of murder in the first degree, unless those special circumstances of atrocity which raise it from the grade of ordinary murder be specially stated in the indictment. That murder in the first degree is just as distinct from ordinary murder as murder is from manslaughter. In support of this position, we are referred to the work of Bishop on Criminal Procedure, Vol. II, Section 562, et sequitur. The reason of Mr. Bishop in favor of the proposition that murder in the first degree and simple murder (murder in the second degree) as defined in a statute almost identical with ours, is conclusive and unanswerable. But whilst Mr. Bishop has labored with zeal and ingenuity to show the distinct nature of the two offenses — whilst he has not hesitated to censure Legislatures for sanctioning the practice of allowing criminals to be convicted of an offense for which they were not technically indicted — whilst he has censured Courts for so construing statutes as to allow such a practice, when the language of the statute might fairly (in his opinion) admit of another and more reasonable construction, he has not hesitated to admit that where the statute of a State provides for but one form of indictment for both grades of murder, the Courts have nothing to do but to act on the law as they find it, unless indeed the Constitution of the State shall be opposed to the law. He seems further, rather reluctantly, to admit that under statutes in the same form substantially as ours, the various State Courts where such a statute exist have almost uniformly held that the ordinary form of indictment for simple murder was sufficient to support a conviction for murder in the first degree. We copy from Mr. Bishop's work three sections, which clearly show his views as to what has been held under a statute like ours. In a note to Section 565, he refers to numerous decisions sustaining the sufficiency of the ordinary form of indictment for murder to sustain a verdict for murder in the first degree:

"SEC. 562. In the work on criminal law, the statutes relating to this subject, with their interpretations, will, as far as their presentation is necessary, appear — except as to the provisions which concern the procedure. Let us here, however, repeat the parent statute, being the Pennsylvania one of 1791. It is, with the exception of the part which relates to the procedure, as follows: `Whereas, the several offenses which are included under the general denomination of murder differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment, etc.; all murders which shall be perpetrated by means of poison, or lying in wait, or by any other kind of wilful, deliberate or premediated 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; and all other kinds of murder shall be deemed murder in the second degree."

"SEC. 563. Here is a statute dividing murder into two degrees, precisely as felonious homicide was by Stat. 23, Hen. VIII, Chap. 1, Sec. 3, divided into the two degrees which were afterward termed murder and manslaughter. And if any one wishes to see how the procedure should be, particularly as concerns the form of the indictment, if the statute ended here, he has only to reperuse the discussions under our last sub-title for a complete judicial exposition of the matter. But the statute did not so end. It continued, in the same section, to provide as follows: `And the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree; but if such person shall be convicted by confession, the Court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly.'

SEC. 565. "It is never well for legislation to make exceptional provisions respecting the procedure in particular cases. Still, as legislators will sometimes do such things, the Courts must deal with them as best they can. And the course of decisions in our tribunals has been that, if the indictment is drawn after any form which would be good at the common law as an indictment for a common law murder, the jury may, by force of the above statutory provisions regulating the procedure, taken into their consideration evidence of those facts not alleged, which, added to the facts alleged, constitute murder in the first degree, as distinguished from murder in the second degree. In other words, the indictment need not set out the aggravating circumstances which swell the crime to murder in the first degree, as the indictment for the first degree of felonious homicide called murder is required to do with respect to those which thus swell the offense from the second degree, called manslaughter, to murder. This comes, as just said, from those statutory provisions which regulate the procedure."

Whilst our statute distinguishing between murder of the first and second degree does not contain the preamable as quoted by Mr. Bishop from the Pennsylvania statute, in other respects it is almost an exact copy from the Pennsylvania Act. There are one or two slight verbal discrepancies, but there is nothing which would call for a different rule of action in regard to indictments under the two Acts.

We are satisfied from the language of the statute that it was not the intention of the Legislature, in making the distinction in the two classes of murder, to require a distinct indictment for each; and as it had been almost the uniform practice under similar Acts in other States to hold that an ordinary indictment for murder was sufficient to sustain an indictment for the higher crime of murder in the first degree, we must hold that the Legislature, in adopting the statute, also adopted the interpretation heretofore put on it.

Holding, then, that the indictment in this case is a good indictment for murder under the form prescribed by the Legislature, and that any indictment which is sufficient as a simple indictment for murder is sufficient to sustain a verdict for the higher crime of murder in the first degree, the only remaining inquiry to be made is: has the Legislature the power to require a jury, under an indictment for murder, to determine whether the prisoner has been guilty of murder only, or of the higher crime of murder in the first degree.

If we were called upon to determine whether it would be proper for the Legislature to exercise such a power, probably, as lawyers accustomed to all the formalities of the common law, we might answer in the negative. But propriety is one thing — power is another. The Legislature has absolute power over the subject of criminal practice, in most respects. It cannot deprive a party of the right to trial by jury, of the right of appeal, the right to be defended by counsel, the right of compulsory process for his witnesses, and perhaps some other rights which are especially provided for either in the State or United States Constitution. He cannot even be put on trial for an offense punishable with death, or for other infamous crime, without an indictment or presentment by a grand jury. But the form of that indictment or presentment, according to our views, is entirely within the control of the legislative department. Our Statute (Sec. 412 of the Criminal Practice Act) declares: "In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged."

So the Legislature might, in our opinion, declare that when a person is indicted for manslaughter only, he may be found guilty by the jury of either manslaughter, murder in the second degree, murder in the first degree, or be acquitted, as all the facts proved, taken in connection with the law of the land, shall appear just and proper. Indeed, if no distinction is to be made between murder in the first degree, which is punishable with death, and murder in the second degree, which is only punishable with imprisonment, it would seem but reasonable that all distinction as to the form of indictment between simple murder and manslaughter should be abolished, for each of these crimes is punishable by imprisonment only, and they both may be for the same term, to wit: ten years — the only difference being that ten years is the shortest period in murder and the longest in manslaughter. If indictments in these cases are to be governed by any philosophical rule, they should clearly designate the grade of the offense with which the prisoner is charged, clearly distinguishing the offense charged from the next lower grade; or else there should be but one form of indictment for all unlawful homicide, leaving the jury to determine, from facts proved on trial, the grade of the offense. It is, however, our business to administer the law as we find it, and not make law.

The argument of Mr. Bishop against the power of the Legislature to dispense with the finding of an indictment for murder in the first degree, specifically pointing out those circumstances of deliberation or atrocity which raise it from the degree of simple murder to the higher crime, are principally based upon the following clause of the Constitution of Massachusetts: "No person shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally described to him."

It is sufficient to say, in answer to his arguments, so far as they are sought by appellant to be applied to this case, that we have nothing in our Constitution at all similar to this.

Appellant contends that there is not sufficient evidence to sustain the verdict; that the whole amount of proof is that defendant was found in possession of some of the property of deceased. We view the proof in a different light. He was found in the possession of a large amount of the property of the deceased, and of that property which she had only a few hours before her death; not only in possession of an amount of her property, which he could not well have obtained honestly, but he is shown to have made false statements in regard to it.

At least, if the statement were true, he could easily have proved some of them to be so, which he neither did, nor attempted to do. He made statements in regard to the dresses and jewelry having belonged to his wife, who he said was dead. Yet on the trial he made no attempt to show he ever had a wife, nor any attempt to find the woman who had (according to his story) sent a dress pattern by him for sale. When he sold the diamonds, instead of selling them in their settings, he took them out of the gold setting and sold them separately. This was not the conduct of an innocent man.

The possession of property recently stolen, or taken from the owner by the perpetration of other felony, such as burglary or robbery, etc., is at least some evidence against the person having possession of the same that he is the felon. If the property is such in character or quantity as would not be likely to come honestly into the hands of the person with whom it may be found, as ladies' dresses, jewelry, etc., in the hands of a single man not engaged in trade or pawnbrokerage business, this would greatly strengthen the evidence. If such articles were found in large quantity, beyond the apparent means of the party to acquire honestly, this would still further increase the strength of the evidence. If the party should, in addition to all these things, tell lies about the property, and attempt to dispose of it under false pretenses and representations, the evidence would become conclusive beyond all reasonable doubt. In this case the evidence seems satisfactory that the defendant was guilty of the offense charged.

The only remaining question to be discussed is, did the Court err either in giving its instructions or in withholding those asked by the defendant. The first portion of the charge to which exception is taken is, that the Court charges the jury that they must find the prisoner guilty of murder in the first degree, murder in the second degree, or not guilty; thus taking from them the right to find the prisoner guilty of manslaughter.

The evidence here shows, if it shows anything, that deceased was killed at a late hour of the night or in the morning in her bed, and that after the killing, the house was robbed. There is no testimony attempted to be introduced by defendant showing or attempting to show the killing might have been done in a quarrel or fight. The law presumes that every unlawful voluntary killing is murder.

In the absence then of any explanatory evidence, the defendant was guilty in the eye of the law of murder, or nothing. It was therefore proper to give the charge as above stated. If it was proper under such a state of facts to charge the jury they might in their discretion find the prisoner guilty of manslaughter, it was equally proper to charge they might find him guilty of an assault to commit murder, or even guilty of simple assault, for both of these are crimes of which a party under our statute may be convicted upon an indictment for murder. Yet in a case where a party was beyond all question slain and another party indicted for the murder, it would seem ridiculous to charge the jury that they might find the defendant guilty of a simple assault.

Appellant quotes the following language from the Judge's charge, and complains that it is erroneous:

"If you believe from the evidence that about the nineteenth day of January last, at Virginia, Storey County, the defendant, with malice aforethought, either expressed or implied, and with deliberation and premeditation, did unlawfully kill Julia Bulette, with intent to take her life, it will constitute murder of the first degree; and you should so find; otherwise you will acquit."

The objection to this is, that in effect the Jury are instructed what it takes to make murder in the first degree; and after being so instructed, they are told that if they cannot find these circumstances to have attended this killing, they must acquit the defendant. If there is any objection to this instruction, it is too favorable to defendant. The jury are instructed in effect, if you fail to find that the killing of this woman was attended with a deliberate and premeditated intent to kill (circumstances which raise the offense of simple murder to murder in the first degree) you will acquit the defendant although you may believe he was guilty of the crime of murder; that is, of killing the deceased with malice aforethought, but without a deliberate or premeditated intent to kill. If then, this instruction was erroneous, a point we will not now discuss, it was an error in favor of, not to the prejudice of the prisoner.

The next language complained of is this: "If you believe the defendant guilty of an offense, and doubt as to the degree, you can only convict of the lowest degree of crime within the grade of the one charged — murder in the first or second degree."

This language is not technically correct, but could not operate to the prejudice of defendant if we are right in the first views expressed about the Judge's charge. That is, that there was no testimony before the jury authorizing them to consider the guilt or innocence of the prisoner in regard to any crime less than murder.

In another portion of the charge the Judge, after speaking of the unsatisfactory character of conclusions drawn from the mere fact of the prisoner being found in possession of stolen property, adds: "It will be necessary for the prosecutor to add the proof of other circumstances indicative of guilt in order to render the naked possession of a thing available to a conviction, such as the previous denial of the possession by the party charged, or his refusal to give any explanation of the fact, etc."

This language is complained of because, says counsel for appellant: "This language unexplained led the jury to conclude that the defendant's failure to testify and explain these things when the law held out to him an opportunity to do so, accompanied by proof of the possession, would warrant them in finding a verdict of guilty."

At common law the failure of the prisoner to account for the possession of stolen goods was held a strong circumstance against him, although from the rules of evidence under that system it was frequently difficult if not impossible to do so. At least it might be impossible even for an innocent man to account for his possession under the rule of evidence as established at common law.

This instruction would formerly have been correct. Surely it cannot be incorrect now, because the prisoner has one means of accounting for stolen goods in his possession, which he did not have at common law.

In another portion of the instruction the jury were properly cautioned against giving any effect or weight to the silence of the prisoner. The same observations we have made in regard to this latter point will apply to some other matters contained in the charge.

That portion of the charge which at first blush seemed to the writer of this opinion most questionable, is contained in the following language:

"The distinction between murder of the first or second degree is quite nice. I will briefly state such distinction, although from the testimony I apprehend that you may conclude that the defendant was either guilty of murder of the first degree, or innocent."

Our Constitution provides that "Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law."

This language is contained in many of the newly adopted State Constitutions. When it was first introduced, or where these peculiar expressions originated, we have been unable to find in the limited period we have devoted to the subject.

Nor have we found much adjudicated as to the force of these expressions, or the construction to be put upon them.

The California Constitution contains the same language, and the Supreme Court of that State, in the case of the People v.Ybarra, 17 Cal. 170-1, use this language: "The jury," says Chitty, "are as much judges of the fact as the Courts are of the law, and have an absolute power to acquit or convict; and it would be a great responsibility for the mind of a Judge if he were to decide on the guilt or innocence of the prisoner. (1 Chit. Crim. Law, 528.) The rule at common law appears to be that a Judge may express to the jury his opinion in regard to the weight of evidence. (Commonwealth v. Childs, 10 Pick. 252.) But it has been held in Alabama that a Court should not charge as to facts, even in a civil case. (Tubbs v. Madding, 1 Minor, 129.) It is unnecessary to inquire whether the instruction in this case was in violation of the principles of common law; it was clearly within the prohibition of the Constitution, and cannot be maintained without disregarding the express provisions of that instrument. The language of the Constitution is: that `Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.' (Const. Art. VI, Sec. 17.) This provision is violated whenever a Judge so instructs as to force the jury to a particular construction upon the whole or any part of the case, or to take away their exclusive right to weigh the evidence and determine the facts. The meaning of the provision is, that the Judge shall decide upon the law and the jury upon the facts, and that the former shall not invade the province nor usurp the powers of the latter. The Judge has no more right to control the opinion of the jury upon a matter of fact than the jury have to disregard the directions of the Judge upon a matter of law."

From the views here expressed, we should say that the Court in effect held that this clause in the Constitution is but an affirmance of the common law principal, that the Court is to be the judge of all questions of law and the jury of all questions of fact. So far as the testimony is concerned, the Court is usually the exclusive judge as to its admissibility; the jury must determine as to its weight, after admitted. But whilst the jury can determine as to the weight and credibility of testimony, the Court may certainly at common law determine whether there is, or not, any testimony tending to prove a certain fact or facts which are essential to sustain an action or support a prosecution. It is on this principle that Courts daily grant nonsuits in civil cases, and in criminal cases direct or advise juries to acquit.

If a prisoner is under indictment for murder, and the prosecution fails to establish the fact by at least reasonably conclusive testimony that the person charged to have been killed is really dead, the Court would not hesitate to direct or advise the jury to acquit. So too when a party is charged to have committed murder by poisoning, and all proof is directed to such a charge, and the deceased is shown to have died by poison and not by any other kind of violence, surely it would not be improper in the Judge to say that all felonious and wilful poisoning which proves fatal is murder in the first degree; and as there is no charge or proof against defendant that he caused the death of the party he is accused of murdering in any other way than by poisoning, therefore I advise you there is no proof to justify a conviction of murder in the second degree or manslaughter. Therefore, if you are fully satisfied that the prisoner caused the death of deceased by poisoning, you will convict of murder in the first degree. But if you have any reasonable doubt on this subject you will acquit. Such an instruction seems to us in such a case not only proper, but where the testimony is doubtful, necessary for the protection of the prisoner. Otherwise the jury, when they are not fully satisfied of the guilt of the prisoner, might compromise with their consciences by finding him guilty of an offense which would not deprive him of life.

In the case of the State v. Phillips, 24 Mo. 475, referred to by Bishop in a note to section five hundred and sixty-five of his valuable work on Criminal Procedure, the Appellate Court seems to have granted a new trial because the Court below gave instructions in regard to murder in the second degree, under which instructions defendant was found guilty of that offense, where the indictment was for murder in the first degree, and we infer [for we have not the twenty-fourth Missouri Reports to examine] the testimony was such that he must have been guilty as charged, or not guilty at all. So far as we can understand the case, it sustains the views we have here expressed, and even goes further than perhaps we would be willing to go. With our present impressions we should certainly hesitate to grant a new trial merely because the jury had found him guilty of a less offense than the one really committed, unless indeed he himself distinctly asked the jury to be instructed that they must find him guilty of the higher offense or none. Then, if there was no pretense of there being any evidence to justify the lower degree of crime, it would become a serious doubt if the prisoner would not be entitled to a new trial or a discharge. But it will perhaps be time enough to meet this question when it arises. For this case it is sufficient to say, it is in our opinion no violation of the constitutional provision referred to for the Court, in a clear case, to instruct the jury that there is, in the opinion of the Court, no evidence tending to convict a prisoner of any lower grade of offense than the one charged. If however there is any evidence at all, however slight, on any reasonable theory of the case consistent with the evidence given, under which the defendant might be convicted of a lower grade of offense than the one charged, then the Court should instruct as to the nature of both, or of any offense of a lower grade of which the prisoner might by possibility be found guilty, leaving the jury to determine all questions of fact about which there might be any controversy among reasonable men.

Taking the testimony and the legal presumptions arising therefrom in this case, and there could be no question but that the offense was of a higher grade than manslaughter. Whether it could have been held to be of a lower grade than murder in the first degree by a reasonable being, may be somewhat doubtful. Whether it could or not, the mere expression of the Judge that he thought the jury, under the evidence given, might conclude either that the prisoner was guilty of murder in the first degree or else not guilty, when accompanied with a clear and explicit instruction as in this case, that the jury might find him guilty of murder in the first or second degree, is not error injurious to the prisoner.

There is nothing wrong in the definition of murder in the first degree, as given by the Court to the jury — at least nothing to mislead the jury. There is no real distinction in the meaning between the word "inferred," as used by the Court, and "implied," as used in the statute. Nor was it necessary for the Court to tell the jury that murder by lying in wait, poison, etc., was murder in the first degree. There was no evidence or charge of such killing in this case. It was sufficient to show that where the killing was willful, premeditated, unlawful killing, it amounted to murder in the first degree.

The next complaint of appellant is that the Court instructed the jury that the intent to kill "need not have existed for any given length of time before the killing." In other words that willful, deliberate and premeditated killing might take place in cases where the design to kill was formed at the very moment of striking the fatal blow. This we think the settled law. (See the case of The People v. Clark, seventh New York, 3 Selden, Court of Appeals, pp. 385 to 395; see also, Wharton's Criminal Law, Sec. 1,113.) The case of Sullivan v. People, 1 Park, Criminal Report, was overruled in the case cited from seventh New York, and the Iowa case alone stands to support appellant's views, against numerous authorities on the other side.

We apprehend the true difference between simple murder (or murder in the second degree) and murder in the first degree, under our statute, does not consist in the length of time the murderer must have deliberated, but whether he had, at or before striking the fatal blow, formed the design to slay his victim. If such design was formed, however recently, it will be murder in the first degree.

If it be asked, what is the distinction between willful, deliberate, premeditated killing, under our statute, and killing with malice aforethought; the answer is that malice aforethought, as used in the old common law indictments, did not necessarily imply that there was any preconceived intent to take life. The malice aforethought may have been only a preconceived intent to commit some other felony. If, for instance, in our State, a party were to attempt, upon a preconceived design, to commit mayhem, and the blow given in the attempt should prove more serious than was intended, and produce a fatal result; this would be murder. The preconceived intent to commit a felony would furnish the ingredient of malice aforethought. But in such supposed case, there is no willful, deliberate or premeditated intent to kill; consequently the crime would be but murder in the second degree.

Appellant objects to the following language used in the Judge's charge: "By reasonable doubt is ordinarily meant such a one as would govern or control you in your business transactions or the usual pursuits of life." This is objected to on the authority ofJane v. The Commonwealth, 2 Metcalf, Kentucky Reports, p. 30, referred to also in the twentieth U.S. Digest, p. 482, Sec. 142.

An examination of the case in second Metcalf does not, in our opinion, support the views of appellant. We do not deem it necessary to go into an analyzation of the Kentucky case to show the distinction between that and this. Suffice it to say that the peculiar phraseology of the instruction in that case was such as in the opinion of the Appellate Court might perhaps have induced the jury to believe they were to weigh the testimony and decide the case on the weight of testimony. Here there is no such complaint. The jury were plainly told that if they had any reasonable doubt as to defendant's guilty they must acquit.

There does not appear to be any serious objection to the instructions given, other than that they are too long and contain many things which were unnecessary and rather calculated to confuse than enlighten the jury.

Among other instructions asked by the prisoner were the following: "The jury is instructed that the fact that the clothing or other property of the deceased was found in the possession of the defendant after her decease is not sufficient of itself to warrant the jury in finding the defendant guilty under the indictment against him." "You are instructed, even if you find the goods belonging to deceased in her life were in possession of defendant, that this is a fact by no means conclusive, but one `whose persuasive power is very slight.'"

Both these were refused by the Court, and the prisoner's counsel excepted.

We are of the opinion the Court did perfectly right in refusing these instructions. It is true, the mere fact of finding property that had belonged to deceased in the possession of defendant, might not be sufficient to warrant his conviction, or even to raise a reasonable suspicion against him. For instance, had the defendant been a pawnbroker, and had there been a single article, or only two or three articles of property which had belonged to deceased found exposed in his shop window, this would hardly have been a suspicious circumstance. On the other hand, the number and value of the articles found, the place where they had been concealed or deposited before found, and other circumstances which we can imagine connected with the finding, might clearly indicate the defendant's guilt.

To give them such instructions as these is simply calculated to mystify and confuse the jury. The Court did perfectly right in refusing to give them without the necessary and proper qualifications.

The Court did, in fact, give these instructions in the charge to the jury with the proper qualifications and explanations, as the following extracts from the main charge will show:

"The testimony in the case tends to show the property of the deceased, or some portion of the same, in the possession of the defendant, at a time subsequent to the alleged murder, and at quite a recent date. The degree of weight to which this character of testimony is entitled in law is laid down by Greenleaf in his work on Evidence, and I have extracted from and incorporate as a part of my instructions to you, a portion of section thirty-one of the third volume: `The caution necessary to be observed on this point applies with more or less force in all criminal trials, but from the nature of the case is more frequently and urgently demanded in prosecutions for homicide and larceny. We have heretofore adverted to the possession of the instruments or the fruits of a crime as affording ground to presume the guilt of the possessor; but on this subject no certain rule can be laid down of universal application; the presumtion being not conclusive but disputable, and therefore to be dealt with by the jury alone as a mere inference of fact. Its force and value will depend on several considerations. In the first place, if the fact of possession stands alone, wholly unconnected with any other circumstances, its value or persuasive power is very slight, for the real criminal may have artfully placed the article in the possession or upon the premises of an innocent person, the better to conceal his own guilt. * * * *

"`It will be necessary for the prosecution to add the proof of other circumstances, indicative of guilt, in order to render the naked possession of the thing available towards a conviction, such as the previous denial of the possession by the party charged, or his refusal to give any explanation of the fact, or giving false and incredible accounts of the manner of the acquisition; or that he has attempted to dispose of it, or to destroy its marks, or that he has fled or absconded, etc., or other circumstances naturally calculated to awaken suspicion against him, and to corroborate the inference of guilty possession.'

"If you should be satisfied from the evidence that the articles of jewelry, clothing and watches exhibited, or any of them, were in the possession of Julia Bulette at the time of her death, and were taken and carried away at said time, by the person who caused her death, and that the articles so taken were afterwards found in the possession of John Millain, defendant, it devolved upon him to explain and account for such possession by him, and unless he has explained his possession to have been by means not connected with the death of deceased, or upon any reasonable hypothesis of his innocence, and this fact being supported by other circumstances indicative of guilt, you will be warranted in giving such facts such weight as you may deem proper tending to establish guilt."

The record shows that the jury did not see the instructions refused, or hear them read; so there was no harm done to the defendant by the Court refusing to give these instructions without explanation.

Mere abstract principles of law not applicable to the state of facts found in the case, should not be given by way of instruction to a jury.

I am of the opinion that the judgment should be affirmed, and the Court below directed to fix a day for carrying its sentence into execution.