Page:Dakota Territory Reports.djvu/473

, J.—We have in the record before us, in form, a common law indictment for murder, with a verdict of guilty as charged, and judgment of death. Is this indictment sufficient, under our statute, to sustain this verdict and judgment? Counsel for defendant insist that it is not, and that it charges only manslaughter in the first degree, for the reason that it does not charge, in haec verba, the homicide to have been perpetrated " with a premeditated design to effect the death of the person killed." Murder, as defined by the common law is "when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethought, either express or implied." Our statute (§ 242 Penal Code) defines murder as follows:

1. "When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being.

2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.

3. When perpetrated without any design to effect death by a person engaged in the commission of any felony."

It will be observed that the words "with malice aforethought" are not employed in our statutory definition, and that a criminal homicide may rise to the higher degree of murder, though wanting in the element of premeditated design. What ingredient, if any, has our statute added to, or eliminated from the crime of murder as it existed at the common law? If no ingredient has been added, and the crime remains substantially the same, though the phraseology used by our statute in defining it may be different, then this indictment must be held good.

The rule contended for by counsel for defendant, that the indictment should bring the offense within the words of the statutes declaring it, is applicable only in its strict terms to cases where the offense is created by the statute, or where the punishment has been increased, and the plea-