Page:Dakota Territory Reports.djvu/471

 The attention of the court was not called to it. No substantial rights of the prisoner were prejudiced. The jury must have been informed of the issues they were to try, and that is the sole object of the reading of such indictment and statement of the plea, and as we do not find such neglect among either of the causes for a new trial or arrest of judgment, the statute must be held to be only directory, at the least, unless the defendant had seasonably demanded it and it had been refused by the Court.

The re examination of the witness Hood was in no sense an impeachment of him. He was examined by the defense upon a matter not brought out by the prosecution, and was again brought back upon the witness stand to correct an error of statement made by him upon such examination by the defense. This does not come within the rule laid down by Greenleaf and other authorities. (Greenleaf's Ev. § 442, 443, 444, 445, a and notes; Sanchez v. People, 22, N. Y. 147.) Nor do I see any objection or exception noted in the bill of exceptions, although it is recited as a fact in the motion for a new trial and arrest of judgment and in the petition in error that such objection was made and exception taken.

The indictment is a sufficient indictment for murder at common law, and is therefore sufficient under our statute. (People v. Enoch, 13 Wend., p. 159; Fitzgerrold v. People, 37 N. Y. p. 413.) Our statute does not divide murder into degrees as in the States, from whence the counsel for defendant draw their authorities, and therefore the reasoning of those authorities does not apply. Surely "with malice aforethought," must mean "with a premeditated design," or with some design. And manslaughter in the 1st degree is defined to be a killing without a design to effect death, except when perpetrated unnecessarily in resisting an attempt to commit a crime or after such attempt has failed. This then charges murder or it charges, no felonious homicide at all.

The record is not at all satisfactory as to the charges given and refused, requested by the defendant, and it is not easy therefrom to tell precisely or substantially what requests were made by defendant or what of such requests were given and