(dissenting). —I concede that tbe weight of authority is with tbe majority of tbe court; but I cannot bring my judgment to a concurrence therewith, and hence I am compelled to dissent.
Tbe reasoning of tbe cases relied upon to sustain tbe position of tbe majority as to tbe sufficiency of tbe indictment seems to me to be overtecbnical and unsatisfactory to tbe common understanding. I agree with the majority tbat tbe specific intent to kill must appear, but, unlike them, I am of tbe opinion tbat it does appear in tbe indictment in question. I think tbat tbe reasoning of tbe minority of the court in tbe two Ohio cases, cited by Chief Justice Anders, is more satisfactory than that of tbe majority, and should be inclined to follow tbe same and bold this indictment good without tbe aid of our statute as to tbe sufficiency of indictments. And, when aided by such statute, it seems to me clear tbat tbe position taken by tbe majority of the court is untenable.
It is true that one section of our statute requires tbat tbe allegations of tbe indictment must be direct and certain; but this section must be interpreted in tbe light of tbe subsequent sections,which provide in substance tbat an indictment shall be sufficient if a man of common understanding *274can-determine therefrom with what he is charged. Interpreting these sections together, and I can give them all force only by holding that the legislature meant to state in said first section what a perfect indictment should contain, and how it should be stated; and that the subsequent sections were enacted for the purpose of preventing a person charged with crime from availing himself of a want of a technical compliance with said first section by the prosecution. In other words, the legislature has said every indictment ought to be direct and positive as to all its allegations, but if it is not, the defendant can take no advantage of such fact, provided certain things can be gathered therefrom by a man of common understanding.
If this construction of these sections of the statute is correct, the material inquiry in this ease is this: Can a man of common understanding see from the indictmentin question what crime is intended to be charged, together with certain other necessary allegations as to which no question is made? In my opinion there can be but one answer to this question, and that an affirmative one. Let any man of common understanding read the said indictment, and he cannot possibly fail to see that the prosecution intended to charge the defendant with murder in the first degree. And, if this is so, I think that under our statute the indictment is good as against the objections urged against it.
Not only do I think the indictment good, but even if it were bad, I do not think the defendant was in a position to avail himself of its insufficiency as a cause for reversal by this court. For while it is doubtless true that the objection, that the indictment does not state facts constituting the crime of which the defendant wasconvicted, can be raised for the first time in this court, yet in my opinion, it must be regularly raised by the assignment of errors in the case, or at least by the briefs of one or both of the parties to the appeal. In this case the sufficiency of the indictment is not attacked in the least degree, either in the assignment of errors or in the *275briefs, and was first suggested by the oral argument on the part of the plaintiff in error. To bold that sucb a question can thus be raised and made available by a defendant is to practically nullify the requirement of an assignment of errors, either in the brief or elsewhere, and throw open the doors to such a course of practice as will practically deprive this court of the benefit of an argument by the defendant in error as to the vital question upon which the case may turn in this court, and also in many cases as to the final determination of the cause.
I think that the judgment and sentence of the court below should be affirmed: First, because the indictment is sufficient; and second, because the error upon which the majority of the court founds the reversal was not properly before the. court for determination.