Page:Dakota Territory Reports.djvu/469

 The indictment must set out, that the killing was wilful and deliberate, or otherwise designate the element of crime which the statute makes essential to this degree of the offense. (2 Bishop Crim. Pro., 603 (2 ed.) 592; State v. McCormick, 27 Iowa, 402; 27 id., 415; State v. Boyle, 28 id. 522; Slate v. Knouse, 29 id. 118; Fouts v. State, 8 O. St., 98; Kain v. State, 8 O. St., 306; Hagan v. State, 10 O. St., 459; Fouts v. State, 4 Green, Ia., 500; Bower v. State, 5 Mo., 364; State v. Jones, 20 Mo., 58; Johnson v. Comm., 24 Pa. St., R., 386; State v. Reakey, 62 Mo., 40.)

No legal person of any sort has undertaken to answer the view of legal doctrines thus presented. No one who understands them ever will. (2 Bishop Crim. Pro., 607; Form of Indict., 2 Bishop Crim. Pro., 591, 2d ed.)

In Pennsylvania, and other states which have followed its line of decisions, holding that it is not necessary for the indictment to designate the grade of homicide, and that the common law indictment for murder is sufficient in all cases of murder in the first degree, our conclusion is that these cases are of doubtful soundness on principle; but however this may be in those states, the question is different here, where we have no common law crimes, and where even murder is statutory. State v. McCormick, 27 Ia., 402; State v. Thompson, 31 id., 393.)

"Although a different practice has prevailed in Pennsylvania, New York and Tennessee, we consider it safest to follow the practice which has prevailed so long in our own State." (State v. Jones, 20 Mo., 61.)

The instruction given by the Court, that the jury must exercise the same precaution as they would in ordinary business transactions, is error. It should be as in matters of highest concern and importance. (State v. Dineen, 10 Minn., 407; 1 Greenleaf Ev., 2; People v. Brannon, 47 Cal., 96; 2 Green Crim. R., 435 and note; Jane v. Com., 2 Met., (Ky.) 33; Giles v. State, 6 Ga., 285; State v. Ostrander, 18 Ia., 458; 1 Bishop Crim. Pro., 1052.

A reasonable doubt as to the effect of the erroneous charge will be sufficient to avoid the verdict. (1 Grah. & Wat. New Trials, 270; Wardel v. Hughes & Moore, 3 Wend., 418.)