(concurring). — I concur in finding error in the refusal to charge upon second degree murder, but I go further and find error in the giving of the charge upon murder in the perpetration of robbery.
The crime of murder in this State is statutory and the form of the indictment before us charges the homicide to have been perpetrated “from and with a premeditated design” to effect the death of the person killed. The cases relied upon in the majority opinion are all upon the common law form of an indictment for murder “from *172malice aforethought” which, as is pointed out by the New York Court, does not charge specifically “an intent” and thereby obviates any question of variance.