This is a writ of error directed to the Supreme Court in the second judicial district, bringing up the record of an indictment, conviction and sentence of the plaintiff in error, and which had been removed into that court by writ of error to the Court of Oyer and Terminer in and for the county of Westchester.
The plaintiff in error, Fitzgerrold, was indicted in the Westchester Oyer and Terminer for the alleged crime of murder. The substantive allegation in the indictment, on which the question presented below and in this court arises, is, that "Thomas Fitzgerrold feloniously, willfully, and of his malice aforethought, did kill and murder Ellen Hicks, by shooting her through the body with a leaden bullet discharged from a musket," etc. Upon this indictment he was brought to trial before the Westchester Oyer and Terminer, in December, 1866, and the record states that the jury, in returning their verdict, "say that they find the said Thomas Fitzgerrold guilty." Upon this conviction he was sentenced to be hung the ensuing January. The Supreme Court in the second district affirmed the judgment and ordered the sentence to be carried into execution, and a writ of error having been brought to this court, with a stay of execution, the case comes here for a final adjudication.
The point made by the counsel for the plaintiff in error is, that the indictment only charges murder in the second degree, and the jury having returned a general verdict of guilty, the Court of Oyer and Terminer had power only to pronounce a sentence authorized by law in the case of a conviction for murder in the second degree, and that the sentence actually pronounced was unauthorized and void. The question is one of much interest and importance, and has never been presented for adjudication since the change made by the statute of 1862 defining murder in a somewhat different manner from that contained in the Revised Statutes, and creating two classes or degrees of that crime. *Page 686 At common law there were no degrees of murder, and the short and comprehensive definition of the crime was, "when a person of sound memory and discrimination unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, express or implied." (3 Coke's Ins. 47.) The essential ingredient of the crime was malice aforethought, or prepense, as the older books called it, but this might be implied from circumstances which necessarily proved its existence. The Revised Statutes undertook to give a more precise as well as a fuller definition of the crime, but they did not in reality enlarge the scope of the definition, nor include in it any thing which had not been embraced by the common law within the general category of murder.
The Revised Statutes defined the killing of a human being (unless it be manslaughter, or excusable or justifiable homicide) to be murder in the following cases:
"1. When perpetrated from a premeditated design to effect the death of the person killed, or of any 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."
This was the entire definition, and although distinguished by different characteristics and attendant circumstances, the definition embraced but one offense, not separated into nor discriminated by grades or degrees of crimes. After the Revised Statutes went into operation, the case of The People v. Enoch arose, and was decided in the Supreme Court, and ultimately in the Court of Errors. (15 Wend. 159.) He was indicted for murder, and the averment was, that the offense was committed "feloniously, willfully and of malice aforethought," using substantially the old common law form, and not adopting the words of the statute. Enoch was convicted of murder, and sentenced to be executed. The Supreme Court held that the indictment was good, and sustained *Page 687 the judgment, and the Court of Errors approved the decision, deciding, among other things, that the principal object of the statute was to restore the common law of murder as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus to restrict certain cases to the grade of manslaughter, which theretofore were held to be murder.
If there had been no change in the statute, I am inclined to the opinion that this decision (although, as I think, erroneous in principle, and hardly to be reconciled with some recent holdings of this court) would control this case and uphold the judgment. But in 1862, the legislature saw fit to modify the provisions of the Revised Statutes in relation to the crime of murder, and among other things, to create two grades of the offense, to wit, murder in the first and in the second degree. In defining murder in the first degree, they changed the definition of the Revised Statutes of murder, by dropping the third subdivision of section five, and substituting in place of it the words "when perpetrated in committing the crime of arson, in the first degree," and then added to the section a clause that such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, "or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree." It will thus be seen that the transaction thus distinguished, and which had been embraced in the original section defining murder, was taken out of that section, and made the distinguishing mark of murder in the second degree, and whatever practical difficulty may arise, as it has not unfrequently arisen, in ascertaining what other taking of life may fall outside of the definition of other grades of homicide, and within this new class or degree, there is no difficulty in determining that a case which presents these features, to wit, killing by one engaged in the commission of a felony, though without a predetermined intent to take life, is murder in the second degree. *Page 688
While the crime of murder was a single offense, admitting of no degrees, the case of The People v. Enoch might be deemed a controlling authority; but the moment the legislature changed the law of murder, by creating a higher and lower grade, it seems to me to have lost its applicability, if, indeed, it be not, in spirit, an authority against the ruling of the Supreme Court in the case now under consideration. The chancellor, in maintaining the doctrine that an indictment in the old common law form, charging the crime to have been committed with malice aforethought, was sufficient under the Revised Statutes, says, the object of the legislature was, not to create a new offense of murder, but to restore the ancient common law on that subject, as it existed when the common law form was originally adopted; and, therefore, he holds that the indictment in that form was good for the crime of murder committed under any of the circumstances specified in the three subdivisions defining the crime. If this be so, then the indictment in this case was a perfectly good indictment for murder in the second degree, since the killing, which was murder under the circumstances described in the third subdivision of the fifth section of the Revised Statutes, is now removed from the category of murder in the first degree, and constitutes murder in the second degree. The jury, therefore, having found a general verdict of guilty under an indictment which may be held to charge the crime of murder in the second degree, the court had no right to assume that he was guilty of murder in the first degree, and pass a sentence which only a conviction for such an offense would authorize.
The decision in the case of The People v. Enoch proceeded, in effect, as we have seen, upon the ground that the Revised Statutes, in respect to the crime of murder, had not altered the common law, and that the definition therein given was but the adoption, or introduction into the statute, of the common law description of the crime. It was, consequently, held that the words, "malice aforethought," were so nearly identical with the words, "premeditated design," as to fall within them. But with all proper respect for that decision, which appears to have been the unanimous judgment of the Court *Page 689 of Errors, affirming the judgment of the Supreme Court, it seems to me that both courts overlooked and ignored the most important qualification of the words, "premeditated design," contained in the words following it in the statute, to wit, that the design thus premeditated must be one "to effect the death of the person killed, or of any human being." The ruling purpose must be one to effect death; whereas, the words, "malice aforethought," may be referred to a dominant and controlling purpose having another object, and the death effected occurs as an adventitious result of the original act to which the motive impelled. And this is obviously the case where death is caused by one engaged in the commission of a felony, without any original design to cause the death of any human being whatever.
This view is very clearly presented in the opinion of JOHNSON, J., in The People v. Clark (3 Seld. 385-393), where he says, that "malice prepense had attained a broader meaning than belongs to the term, `premeditated design.' The intent to take life wasnot necessary to constitute malice prepense. Even express malice, or malice in fact, is defined to be a deliberate design of doing any bodily harm to another, unauthorized by law, and by no means necessarily involved an intent to take life. The change, therefore," he adds, "which the statute has effected, by substituting the word `design,' in place of `malice,' is to require what the common law did not require — the existence of an actual intention to kill — to constitute that crime under the first subdivision of the fifth section." And this view is said to be sustained in those States where the crime of murder has been distinguished by statute into murder in the first and second degrees.
The logical sequence from these propositions would seem to be, that, even under the Revised Statutes, the proper mode of framing an indictment for murder would be to follow the very words of the statute, and thus to indicate, by specific averments under which one of the three subdivisions of the fifth section, defining the offense, the alleged crime was committed. But, however that may have been, under the law as it now stands, creating degrees of the crime of murder, the obligation *Page 690 seems to me imperative to pursue the mode thus indicated; and my opinion is, that an indictment for murder must show, on its face, that it is for murder in the first degree, if that is the offense intended to be presented for trial; and that, where the record shows nothing but an indictment which is a good indictment for murder in the second degree, and the jury responds by a simple verdict of guilty, the only sentence that it is competent for the court to pronounce is the one prescribed by the statute for murder in the second degree.
In the case of Dedieu v. The People (22 N.Y. 178), this court enunciated the principle which, it seems to me, should govern this case. In the course of the opinion, Judge DENIO, speaking of a statute specifying different degrees of crime, says: "An indictment for any of these offences must charge the defendant, with certainty and precision, with having committed the acts under the circumstances and with the intent mentioned in the statute. If any of the ingredients contained in the statute definition are omitted, the indictment is fatally defective, and the defect is not cured by the verdict. The act which is charged as an offense must be described with such a degree of certainty as to distinguish it from other transactions, so that a party may not be indicted for one thing, and tried for another." See, also, the opinion of INGRAHAM, J., in Fallinger v. The People (15 Abb. 128). This mode of charging alleged crime in an indictment seems to me not only just, but elementary, and should be governed by the same rule that applies to a pleading in a civil action by a party who claims a penalty, or seeks to enforce a remedy given him by statute, and who must bring his case precisely and specifically within the provisions of the statute, or his pleading will be fatally defective.
It is no answer to say, that, on the trial in this case, all the proof necessary was given to show that the defendant was guilty of the crime of murder in the first degree, and that we may assume the court instructed the jury properly as to the character of the prisoner's guilt; and, therefore, no injustice has been done. This we cannot know, for this case comes before us without any evidence whatever, but simply upon *Page 691 the record, showing under what indictment the trial took place, and what verdict was rendered — a verdict entirely consistent with an indictment and a trial for murder in the second degree, and where, if any other verdict had been rendered, it would, in my judgment, have been erroneous.
If these views prevail, the judgment of the Supreme Court must be reversed; and the question then arises, what disposition shall now be made of the case? We cannot send back the prisoner for a new trial, since, if there were no other difficulty, the constitutional immunity of the defendant, which forbids his being twice put in jeopardy of life for the same offense, would protect him from the perils of another trial. But I see no objection to remitting the case to the court below, for further action. Our reversal, in fact, touches nothing but the sentence. Upon an indictment, good for the offense of which we must assume the defendant was found guilty, a proper verdict has been rendered. Every thing is right but the sentence; and as that will be greatly mitigated by the position in which the case now stands, the record should be remitted to the Supreme Court, with directions to cause the plaintiff in error to be brought before it, to receive the sentence which the statute authorizes the court to pronounce upon a conviction for the crime of murder in the second degree.
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