[BOOK IV. fendant guilty of murder in the first degree or acquit him, is erroneous, as infringing too much on the province of the jury. y Where the allegation is that the murder was committed in the "attempt to perpetrate a felony," the attempt must be positively proved, and must be actual, not constructive. z 3. Indictment. § 1115. Common law indictment for murder sufficient. - According to the great weight of authority, a common law indictment for murder is sufficient to support, under the statutes, murder either in the first or second degree. a The same rule Lane r. Com. 59 Pa. St. 371. In 1872, the law was thus stated by Judge Agnew: "The other errors assigned to the charge are not sustained. It is contended, and earnestly pressed upon us, that the judge had no right to say to the jury that if the prisoner was guilty of murder, it was murder in the first degree, and it was their duty to say so regardless of consequences. The indictment charged a murder by poison, and such was the tendency of the evidence. It was not only the right but the duty of the judge to inform the jury of the degree which the law attaches to murder by poison, and to instruct them in their duty under the law. It is only when the charge becomes imperative, and takes from the jury the right of deciding and pronouncing the degree of the murder, that we have held it to be error. When left free, as in this case they were, to decide the degree for themselves, we have not held it to be error to impress upon their minds the legal inference from the facts, and their duty to obey the law. But when as in Rhodes v. Commonwealth, 12 Wright, 396, and Lane v. Commonwealth, 9 P. F. Smith, 371, a court addresses a jury authoritatively, and requires of them a verdict of murder in the first degree, it is error. Jurors uninstructed in their rights in a capital case may feel thesmelves constrained by the peremptory direction of the judge. Both the cases referred to stood upon the same ground, and in both the error was the binding instruction of the court. The language in this case approaches closely the boundary line of peremptoriness, but we cannot say it overstepped it, in view of those parts of the charge which left them free to act for themselves." Shaffner v. Com. Pitts. Leg. Jour. Aug. 28, 1872. See Washington v. State, 36 Ga. 222, and post § 3161. z Kelly v. Com. 1 Grant, 484. a Com. v. Wicks, 2 Va. Cases, 387; Green v. Com. 12 Allen, 155; Mitchell v. State, 5 Yerger, 340; Com. v. Flannagan, 7 Watts & Serg. 415; Com. v. White, 6 Binney, 183; Com. v. Miller, 1 Va. Cases, 310; Com. v. Gibson, 2 Va. Cases, 70; Hines v. State, 8 Humph. 597; Livingston's case, 14 Grattan, 592; Gehrke v. State, 13 Texas, 568; White v. State, 16 Texas, 206; Wall v. State, 18 Texas, 682; People v. Lloyd, 9 Cal. 54; McAdams v. State, 25 Ark. 405; Leschi v. Territory, 1 Wash. Ter. 23; Green v. Com. 12 Allen, 155; Fahnestock v. State, 23 Ind. 231; Fitzgerald v. People, 37 N. Y. 413; Kennedy v. People, 39 N. Y. 245; Pike v. State, 49 N. H. 399; State v. Lessing, 16 Minnes. 75; State v. Millain, 3 Nev. 409; People v. Bo is applied where murder is committed in the attempt to commit arson, rape, robbery, &c., in which cases the specific intent need not be alleged. These rulings were first made in Pennsylvania, a state which was the earliest to legislate on this subject; and it needs but a glance at the statutes and their history to see that the interpretation then given to them by the courts is correct. The object of the statutes in Pennsylvania, and in the states that adopted the same legislation, was to provide that when a defendant's mind is not capable of a specific design to take life, then he is not to be capitally punished. c In subsequent Pennsylvania statutes, it was provided that when the defendant's mind is disturbed to the further extent of being actually insane, then the jury is to acquit of the felony, but find the insanity, upon which the defendant is to be imprisoned as a dangerous lunatic. Analogous statutes have been adopted throughout the United States. Now it is no more reasonable to require a "specific intention to take life" to be specially averred to meet the first class of statutes, than it is to require "sanity" to be specially averred to meet the second class of statutes. d The legal scope of murder, as a generic term, is unchanged by either of the statutes. All that the statutes say is that when the jury find that the murder was committed in certain conditions of mind, then the punishment shall not be death, but imprisonment. We cannot reject this reasoning, without holding that in all cases where a jury are, by statute or otherwise, authorized to find a diminished responsibility, the indictment must specially negative the facts implying such diminished responsibility. But this is ab nilla, 38 Cal. 699; State v. Verrill, 54 Me. 408. See State v. Cleveland, 58 Me. 564; Hogan v. State, 30 Wisc. 437. In Missouri, however, it is held necessary to specify the murder to have been wilful and deliberate, and to state the circumstances making it such. Bower v. State, 5 Mo. 364; State r. Jones, 20 Mo. 58. As to California, see People v. Wallace, 9 Cal. 30; People v. Lloyd, Ibid. 54; People v. Steventon, Ibid. 273; People v. Dolan, Ibid. 576; People v. Murray, 10 Cal. 309; People v. Choisier, Ibid. 310; People v. Urias, 12 Cal. 325. As to Iowa, rejecting the views of the text, see State v. McCormick, 27 Iowa R. 402; State v. Watkins, Ibid. 415. b Com. Flannagan, 7 Watts & Serg. 415. c See ante, § 1108; and particularly 1 Whar. & St. Med. J. § 181, 214, 227. d This has been even held when the statute makes a "sound mind" a constituent of murder. Fahnestock v. State, 23 Ind. 231. surd; and we must therefore fall back on the position established above, that an indictment for murder at common law is sufficient in case of murder in the first degree. By the same reasoning, it has been held in Pennsylvania not necessary to aver "against the statute," in the conclusion, the offence being at common law, and only the punishment statutory. e § 1116. In Maine, under a similar statute, the same line of distinction seems to have been taken, as appears in the foregoing cases. The learned judge who presided (Shepley, J.) charged the jury that they could find one of four verdicts, not guilty, guilty of manslaughter, guilty of murder in the second degree, or murder in the first degree. "If it was proved that the prisoner killed Otis, the burden was upon him to reduce the offence from murder. The distinction between murder in the first and second degree was, that it must be proved that the deed was done with express malice, and with an intent to take life. Murder in the second degree might be found where there was no intention to take life, but it was taken not upon a mutual combat or sudden provocation, but in an assault made in consequence of preconceived anger or resentment, although not amounting to an intention to kill. That, in this case, to reduce the offence to manslaughter, the jury must be satisfied from the facts proved by the government, that the assault was not the result of preconceived anger, but upon some new and sudden provocation given at the time or in the mutual combat. If the prisoner went there for the purpose of flogging the deceased, and did make the assault accordingly, and there was no sufficient provocation to excite him anew, and no mutual combat, then, although he did not intend to kill, he would be guilty of murder in the second degree."ƒ In New Hampshire, murder committed in perpetrating a robbery is murder of the first degree, although not committed with a deliberate and premeditated design to kill. Under an indictment, alleging that the accused "feloniously, wilfully, and of his malice aforethought, did kill and murder," the jury may return a verdict of "guilty of murder in the first degree," upon proof of e Com. v. White, 6 Bin. 183. f Com. v. Varney, 8 Boston Law R. 542. murder by deliberate and premeditated killing. Under such an indictment, the jury may return a verdict of "guilty of murder in the first degree," upon proof of murder committed in perpetrating robbery.f1 In summing up the adjudications on this point we may say that in Massachusetts, New York, Virginia, Indiana, Wisconsin, Arkansas, Texas, Nevada, Minnesota, California, and Washington Territory, as will be seen by the authorities already cited, g as well as in Pennsylvania, Maine, and New Hampshire, which have been specially cited above, an indictment for murder at common law will sustain a verdict of murder in the first degree. h § 1117. In Iowa, it has been held by the supreme court error to put the defendant on trial for murder in the first degree, on an indictment charging murder in the second degree, though the conviction was only for murder in the second degree. i § 1118. In Connecticut, a statute was passed in 1870, declaring that in all indictments of murder the degree shall be charged. This, however, does not touch indictments found prior to its passage, in which it is not necessary to allege the degree.j VII. VERDICT. § 1119. The practice in this respect may be briefly stated as follows: — 1st. Under an indictment for murder, if there be a conviction for manslaughter, or of murder in the second degree, the more correct course is to find "not guilty of murder, but guilty of manslaughter," or " of murder in the second degree." In Maryland this has been held essential. But such a degree of particularity is inconsistent with the practice which has been generally sustained.m And in any view, the conviction of the minor degree is an acquittal on the major. m1 f1 State v. Pike, 49 N. H. 399 (Smith, J., 1869). g Ante, note a. h As to verdict, see post, § 1119. i State v. Tweedy, 11 Iowa, 350; State v. McNally, 32 Iowa, 581. As to Missouri, see State v. Phillips, 3 Jones, 475, and cases cited ante, § 1115. j State v. Smith, 38 Conn. 397. State v. Flannigan, 6 Md. 166 Weighurst v. State, 7 Md. 445. m See cases cited ante, § 561, 562, 563; and see post, § 3183, 3196. m1 See authorities given ante, § 550. A verdict of guilty of murder in the second degree "is equivalent to an express acquittal of the defendant for § 1120. 2d. Under an indictment for murder at common law, the defendant may be convicted of manslaughter, m2 though in Pennsylvania, not for the misdemeanor of involuntary manslaughter.n In New York, under an indictment for murder, the jury can convict of any degree. o On an indictment for murder in the second degree, the jury may return a verdict for manslaughter. p § 1121. 3d. Under an indictment for murder at common law, it was once ruled in Pennsylvania, that a general verdict of guilty will be sustained as a verdict for the higher grade, and the defendant sentenced on such verdict for murder in the first degree. q In a later case, however, when an indictment alleging that the defendant feloniously, wilfully, and of malice aforethought, cast a certain person into a dam, &c., and held her in and under the water, whereby she was drowned, a verdict of "guilty in manner and form as indicted," was held not to sustain a sentence of murder in the first degree, and the supreme court reversed the sentence, and imposed a sentence for murder in the second degree. r And now, under the crimes act, the verdict must specify the degree. In Massachusetts, in a celebrated case, which underwent much discussion in 1865-6, it was held that a plea of "guilty of murder in the first degree," to the ordinary indictment for murder, was a plea of guilty of murder in the first degree, and that on this a capital sentence could be imposed. s In New York the same rule obtains on a general verdict of guilty. The practice elsewhere, however, is, to require the designation of the degree. u murder in the first degree, and the defendant could successfully plead the proceedings in this case in bar of any subsequent prosecution against him for the same offence." McMillan, C. J., State v. Lessing, 16 Minnes. 80, 187. Ante, § 550. m2 Ante, § 400, 561-2-3, 627. n Com. v. Gable, 7 S. & R. 423; Walters v. Com. 8 Wright, 135. o McNevins v. People, 61 Barbour, 307. p Wroe v. State, 20 Ohio St. 460. q Com. v. Earle, 1 Wharton, 525; but see, under Crimes Act, ante, § 1114. r Johnson v. Com. 24 Penn. State R. (12 Harris) 386; S. P. State v. McCormick, 27 Iowa, 402. s Green v. Com. 12 Allen, 155. u Johnson v. State, 17 Alab. 618; Kennedy v. State, 6 Indiana, 485; State v. Town, Wright, 75; Dick v. |