Page:Dakota Territory Reports.djvu/476

 The People v. Clark, 3 Seld., 385, (under the same statute) Johnson, J., holds that "the words 'premeditated', 'aforethought', and 'prepense' possess, etymologically, the same meaning; they are, in truth, the Latin and Saxon synonyms, expressing a single idea, and possess in law precisely the same force. The statute, so far as this term is concerned, has not altered the law."

The court of appeals, in the case of Fitzgerrold v. The People, 37 N. Y., 418, decided in 1868, after a careful review of the cases of The People v. Enoch, The People v. White, and The People v. Clark, supra, sustain and re-affirm the doctrine that a common law indictment, charging the offense of murder to have been committed "willfully, and of malice aforethought," is sufficient under the statute. And in the case of Kennedy v. The People 39 N. Y., 245, the same court held that "an indictment for murder, in the common law form, charging the killing with malice aforethought, is good, notwithstanding our statute has divided the crime of murder into different degrees."

And the doctrine is further laid down in that case that ^Hhe statute is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proofs requisite to a conviction."

That a common law indictment for murder, under the statutes of New York, even since the crime has been divided into degrees, is sufficient, may be considered the settled doctrine of that state.

In California, murder is divided into two degrees, and defined as follows: "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 murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree." Under this statute the supreme court of that State has uniformly held an indictment in the common law form sufficient, charging the offense to have been committed with "malice aforethought." (The People v. Lloyd, 9 Cal. 55. The People v. Dolan, id. 576. The People v. Cronin, 34 Cal. 191. The People v. Martin, 47 Cal.