The appellant was convicted of murder in the first degree, and judgment of death awarded upon the conviction, from which the prisoner prosecuted an appeal to this Court.
The first error assigned is, in excluding testimony offered by the prisoner at his trial. It appears from the record that the evidence rejected by the Court, was an offer to prove (not by medical men) that “ they were conversant with persons 6i well known to be insane, and that the conduct and appear-16 anee of the prisoner were like such as they had observed in se the said insane,” and further excluded from the jury expresa sions of the witnesses (not medical men) “ as that the prisoner looked and acted like one insane.”
The first was an effort to prove, not by the knowledge of the witness of the fact of insanity, but by comparison of some other insane person that witness said he knew and that such person was well known to be insane; to have permitted the reception of such evidence, would have been improper, because it was allowing the witness to assume, without the means of contradiction, the hypothesis that his original was really insane, and then prove the truth and faithfulness of the likeness in the person of the prisoner, without the means of contradiction. '
It would have been equally improper to have received as evidence the vague, indefinite expression of a witness, that prisoner looked like, or acted as an insane person. The record shows that gentlemen distinguished in the profession were *573present, and examined as witnesses as to the nature of the wound, and might have been examined by the prisoner’s counsel on the subject of the insanity of the prisoner, had they wished to have done so. We have examined the evidence in relation to the insanity of the prisoner, and the charge of the presiding Judg'e in reference to it. The evidence proves the prisoner tobe a man not of remarkably strong mind, but not the slightest ground to support the proposition, that his mental imbecility was such as to relieve him from responsibility and punishment for a criminal act. The charge of the Court on the question, we regard as a faithful, and an able declaration of the law applicable to the fact proved.
The second error assigned is, the overruling the motion for a new trial. We find nothing in the evidence, nor in the directions of the Court to the jury, that would have authorized the granting a new trial.
The third error assigned is the only one that requires much consideration, and that cannot, at this day, be regarded as presenting any serious difficulty. It is presented by the motion in arrest of judgment, which was overruled by the Court below. It presents this question, does one Act of the Legislature, dividing the offence of murder into two classes, the first and second, in any manner change the Common Law offence of murder, so as to require a different structure of the charging part of the indictment as to the malicious intent 1 The prisoner’s counsel insists, that a difference has been made, and that certain words should now be used in the indictment, not required at Common Law; and he founds his argument on the first part of the Article in the Digest (Art. 2515) defining what shall constitute murder in the first degree, i. e.: “ That all murder committed by poison, starving or torture, or other premeditated or deliberate killing:” that an indictment not for poison, starving or torture, from which death ensues, should allege that it was done premeditately and deliberately ; these words, it is said, should be separated from the context and be so interpreted as to constitute a distinct and *574substantive definition. In several of the States they have statutes not materially differing from our own, and some of them precisely in the same words, in classifying murder. Mr. Wharton, on his work on American Criminal Law, has reviewed those statutes and the adjudications under them, from which the conclusion is drawn that they change not the Common Law definition of the offence, and that under the expressions used, any killing with premeditated malice, not enumerated in the statute, would be murder at Common Law, and could be tried under the statute. (Wharton’s American Criminal Law, commencing page 417, Chap. IX.)
The gist of the crime of murder is malice; and the words wilfully, aforethought, cooly, deliberately, premeditately, are expressive of the facts attending the killing, and are indicia of malice, and all relate to the state of the mind when the offence is committed. If the malice is charged in the indictment, there is no necessity for stating the evidence of the malice: this is matter to be proven on the trial, to sustain the malicious intent.
We believe there was no error in refusing to arrest the judgment, on the ground that the indictment had not followed the statute and alleged that the killing was done premeditately and deliberately.
The whole charge of Judge Gray is characterized by industry, accuracy, judicial learning and a conscientious discharge of official duty, seldom equaled and never surpassed, and it may well be commended to other Judges as an example worthy of being studied and followed. There is nothing in the record to authorize a reversal of the judgment, and it is therefore affirmed, and ordered to be certified to the Court below for execution, agreeably to the statute in such case provided.
Judgment affirmed.