J. (dissenting).—The authorities all agree that a charge for murder in the first degree includes a charge of murder in the second degree and of manslaughter, and that an indictment for the first offense will support a conviction for either of the others. This is conceded in the opinion of the inajority of the court.
Under our statute an indictment consists of a statement of the facts which constitute the crime, in ordinary and concise language. This being so, it must follow that a good indictment for manslaughter must state facts which under the law constitute manslaughter. Hence, if an indictment charging the crime of murder in the first degree will support a verdict of guilty of manslaughter, it must be because the facts which are therein alleged to have constituted the crime of murder in the first degree also include the facts which constitute the crime of manslaughter. The only reason which will warrant the courts in holding that an indictment charging murder in the first degree also includes a charge of murder in the second degree and *354manslaughter is that the unlawful taking of human life is manslaughter; that when such unlawful taking is coupled with malice it is murder in the second degree, and when such malice is premeditated it is murder in the first degree, and that the fact that malice either premeditated or unpremeditated exists in no manner detracts from the unlawfulness of the killing; for which reason every killing is held to be unlawful, and since every unlawful killing is manslaughter, the fact that other characteristics necessary to constitute a higher degree of homicide accompany the killing, in no manner takes from the act of killing those elements which make it manslaughter. The taking of human life, when not justifiable, is manslaughter at least, and when accompanied with malice is more than manslaughter. But the fact that when so accompanied it is more than manslaughter can in no manner take from it those elements which make it manslaughter. The whole is not only equal to hut must include all its parts, Murder in the first degree is made up of an unlawful killing, coupled with premeditated malice. But the fact that premeditation and malice accompany the unlawful act of killing does not take from it its unlawful character. It must follow that whenever facts are charged which show the killing to have been with malice and premeditation, the fact is also charged that it was unlawful, and for that reason the fact of an unlawful killing is so set out that it will support a verdict of manslaughter.
The proposition above stated is not disputed by the authorities cited in the majority opinion, nor in that opinion, when considered simply as a question of pleading; but when it is considered as a question of proof it is held that killing with malice and premeditation in no degree tends to establish an unlawful kill*355ing simply. I am unable to see any reason for this distinction. An indictment must state the facts necessary to be established to constitute the offense, and if the facts stated in the indictment are proven to the satisfaction of the jury a verdict in accordance with ■such charge should be rendered. But if, as we have seen, an indictment for murder in the first degree is by all the courts held to be sufficient to support a verdict for manslaughter, it should in my opinion be also held that proof of the facts which are charged in an indictment for murder in the first degree would be sufficient to support a verdict of manslaughter. If, as a matter of pleading, the acts which constitute murder in the first degree include those which constitute the crime of manslaughter, it would seem that when the same acts are put in proof such proof would tend to establish the crime of manslaughter as'well as that of murder in the first degree. In short, the statutes of this state and of all of the states which recognize degrees of crime in homicide and authorize a conviction for any of the lower degrees upon an indictment charging a higher, can be sustained only upon the theory that each higher degree consists of a lower degree and something more. For instance, the ci’ime of manslaughter is the unlawful taking of human life; the crime of murder in the second degree is manslaughter— that is, the unlawful taking of human life — with an additional characteristic, but such characteristic in no manner detracts from the force of the other elements which without it would constitute the crime of manslaughter. Murder in the first degree includes manslaughter, with an additional characteristic which would make it murder in the second degree, and still another necessary to the crime of murder in the first degree. Hence, every murder *356in the first degree is, under these statutes, manslaughter, and murder in the second degree and something more; murder in the second degree is manslaughter and something more. Upon any other theory an indictment for murder in the first degree would not support a verdict of manslaughter, for the reason that the constitution requires the facts constituting the crime to be set out in the indictment. And if, when it is alleged as a fact that the defendant killed a person with premeditation and malice, it is not also alleged as a fact that he unlawfully killed the man, within the meaning of the statute as to manslaughter, then a verdict of manslaughter would have no facts in an indictment for murder in the first degree upon which it could stand. This seems to me to be the reason of the rule which has grown up and become too well established to be now questioned, that a defendant can be convicted of one of the lower degrees of homicide upon an indictment charging a higher degree.
As I understand it, the case of State v. Greer, 11 Wash. 244 (39 Pac. 874), was decided by this course of reasoning and can be sustained on no other. The rule announced in the majority opinion in the case at bar is in direct opposition to this theory and, in my opinion, unsound. Beside, its practical application, when carried to its logical conclusion, will greatly embarrass the administration of the criminal law. If facts which tend to show that the taking of life was with premeditation and malice have no tendency to show that the crime of manslaughter has been committed, then, upon a conviction for manslaughter, where the indictment charged a higher degree of homicide, it will he the duty of the court to set aside such verdict, however much testimony there may be *357which tends to show a premeditated and malicious killing, unless there is testimony which tends to show simply an unlawful killing, sufficient to support it without the aid of any testimony tending to show a higher degree of homicide.
It is a well known fact that juries are usually inclined to return verdicts for a less degree of homicide than those charged in the indictments, even when the most of the evidence has tended to establish the degree charged, and if every conviction of a lower degree is to be set aside where the testimony which tends to show that degree, without the aid of that which tends to show a higher, is not sufficient to support the verdict, the most of such verdicts must be set aside; and since the law probably is, as intimated by the majority; that the rendition of such a verdict is equivalent to a verdict of not guilty as to the higher degrees covered by the indictment, the result will be that but few of those who are really guilty of some degree of felonious homicide will be punished for the crime.
There is another ground upon which the veridict under consideration can be sustained. The proof tended as strongly to show that the object of the conspiracy was to prevent, by the use of unlawful means if necessary, the traveling of the road known as the “White road,” by the persons who were killed, as that it was for the purpose of securing their death. Hence, for the purposes of this case, it should be assumed, if necessary to support the verdict of the jury, that they found that the conspiracy into which the defendant with others had entered was the doing of an unlawful act, and not the commission of murder;.and while this would not relieve him from responsibility for all acts done in furtherance of the objects of the conspiracy, he would, under such a state of facts, be guilty of *358murder in the first degree only when such acts resulted in a homicide of that grade; and as there was abundant testimony upon which the jury could have found the active participants in the execution of the objects of the conspiracy to have been guilty only of. manslaughter, it follows that the defendant could properly, under such testimony, be found guilty of manslaughter only.
In my opinion the verdict was supported by the proofs. The judgment and sentence should be affirmed.
Scott, J., dissents.