Concurring in Part and Dissenting in Part. I concur in the opinion of Justice Rice that the information *374is sufficient to charge the crime of murder. It will be conceded that under the common law the information would be fatally defective. (People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; People v. Lloyd, 9 Cal. 54; People v. Wallace, 9 Cal. 30; People v. Cox, 9 Cal. 32; People v. Steventon, 9 Cal. 273; People v. Coleman, 10 Cal. 334; People v, Dolan, 9 Cal. 576; People v. Judd, 10 Cal. 313; People v. Miller, 12 Cal. 291.)
Beginning, however, with the case of People v. King, 27 Cal. 507, 87 Am. Dec. 95, the supreme court of California changed its former holding and held that:
“In an indictment for murder it is not necessary to aver the means by which the homicide was committed or the nature and extent of the wound, or the part of the body upon which it was inflicted.”
And in the case of People v. Cronin, 34 Cal. 191, that court further held that an indictment need not aver the means or mode of death. (People v. Hyndman, 99 Cal. 1, 33 Pac. 782.)
In the case of People v. Witt, 170 Cal. 104, 148 Pac. 928, the supreme court of California, in discussing the sufficiency of an information, the charging part of which, with the exception of the name of the defendant and the date upon which the murder was committed, is the same as in the case at bar, says:
“Concededly, this describes the offense of murder in the language of our statute....."Whatever may be the rule declared by some cases from other jurisdictions, it must be accepted as the settled law of this state that it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case. ’ ’
The Witt case cites the case of People v. Soto, 63 Cal. 165, with approval, wherein it is held that an information in the language of the statute defining murder is sufficient to charge murder. The Idaho cases generally have used the same expression. (Matter of McLeod, 23 Ida. 257, 128 Pac. 1106, 43 L. R. A., N. S., 1813; State v. O’Neil, 24 Ida. 582, 135 Pac. 60; State v. Brill, 21 Ida. 269, 121 Pac. 79; State v. Sly, 11 Ida. 110, 80 Pac. 1125; State v. Keller, 8 Ida. 699, 70 Pac. *3751051; State v. Ellington, 4 Ida. 529, 43 Pac. 60; People v. Ah Choy, 1 Ida. 317; People v. Butler, 1 Ida. 231.)
The early California cases, cited above, were decided by the supreme court of that state prior to the adoption of the California criminal practice act by the legislature of the territory of Idaho, in 1864, and ordinarily would be regarded as binding upon this court in the construction of the statute. However, in the matter of sufficiency of indictments for murder the California court changed its position shortly after the adoption of the criminal practice act by the legislature of the territory of Idaho as shown by the cases of People v. King, supra; People v. Cronin, supra; People v. Hyndman, supra; People v. Witt, supra; and many other cases not here mentioned.
While it is true, as a general rule, that where one state adopts a statute from another state, it also adopts the decisions of that state, construing the statute, an exception to the rule seems to obtain where the courts of the state from which the statute was borrowed have repudiated or abandoned such construction. The Colorado court states the rule as follows:
‘ ‘ The rule that courts are bound to adopt the prior judicial construction given a borrowed statute in the state from which it is taken is not inflexible. Where such construction was clearly erroneous, harsh and oppressive, or where it is inconsistent with the spirit and policy of the laws of the state borrowing the statute, courts may, and frequently do, decline to follow it. It can hardly be seriously contended that the rule should control in a ease like the one at bar, where the supreme court has repudiated and abandoned its own construction.” (Dwyer v. Smelter City State Bank, 30 Colo. 315, 70 Pac. 323; Oleson v. Wilson, 20 Mont. 544, 63 Am. St. 639, 52 Pac. 372; Goad v. Cowhick, 9 Wyo. 316, 87 Am. St. 953, 63 Pac. 584; 2 Lewis’ Sutherland Stat. Con., sec. 404.)
From the foregoing it would seem that this court is not bound to follow the earlier California cases prescribing the essential elements of an indictment for murder, but is at liberty to fol*376low the later California cases and the rule hitherto announced by this court.
Informations charging murder in manner and form as alleged in this ease have been held to be sufficient under statutes the same or similar to ours in the following cases: Molina v. Territory, 12 Ariz. 14, 95 Pac. 102; State v. Nielson, 38 Mont. 451, 100 Pac. 229; State v. Hayes, 38 Mont. 219, 99 Pac. 434; Strickland v. State, 19 Tex. App. 518; note to Shaffer v. State, 3 Am. St. 281.
I have examined with care the case of State v. Smith, 25 Ida. 541, 138 Pac. 1107, and do not hesitate to state, that in my opinion it does not correctly state the law governing the sufficiency of an information or indictment charging murder ; that it is not supported by the great weight of modern authority, or supported as authority in testing the point raised in the instant case; that it cannot be so considered in the light of the authorities considered in this opinion, nor under the plain construction and interpretation of our statute, nor with due regard to the proper, certain and efficient administration of the law, and in so far as the rule there announced might be regarded as a precedent in testing the sufficiency of an information or indictment charging murder, the case should be overruled.
I dissent from that portion of the opinion which discusses the alleged erroneous instructions and upon which this case is reversed. There is no assignment of error in appellant’s brief predicated upon the giving of either of these instructions. There is no specification of error based thereon in the transcript or bill of exceptions. The point was not urged upon appellant’s motion for a new trial, nor was it urged upon the oral argument before this court. On the contrary, it affirmatively appears on page 31 of the appellant’s brief that there never was any intention on the part of appellant to predicate error upon the giving of any instructions. I quote from appellant’s brief as follows: ■
“The court instructed the jury fully on all of these matters and there was no objection to the instructions of the *377court on either side, it being conceded and agreed that they were-correct and proper.....” (Italics ours.)
This court has uniformly adhered to the rule that where errors are not assigned, they will not be reviewed. And it is further well settled that even where errors are assigned, if they are not discussed either in the brief or upon oral argument- and no authorities are cited in support of the assignments, they will neither be reviewed, considered nor discussed by this court. (Farnsworth v. Pepper, 27 Ida. 159, 148 Pac. 48; Davenport v. Burke, 27 Ida. 464, 149 Pac. 511; State v. McGann, 8 Ida. 40, 66 Pac. 823; State v. Wetter, 11 Ida. 433, 83 Pac. 341; State v. Jones, 28 Ida. 428, 154 Pac. 378. See, also, Rice v. People, 55 Colo. 506, 136 Pac. 74; People v. Stein, 23 Cal. App. 108, 137 Pac. 271; People v. Valencia, 27 Cal. App. 407, 150 Pac. 68; State v. Kakarikos, 45 Utah, 470, 146 Pac. 750; 12 Cyc. 875.)
Under such circumstances I cannot bring myself to believe that it is proper for this court to assign and discuss errors for an appellant which he expressly waived, abandoned and failed to assign as error.' I find no precedents in our decisions in support of such procedure. The presumption is that if the erroi’s had been called to the attention of the trial court, they would have been corrected before the ixxstructions were given. A defendant in a criminal ease ought not to be permitted to sit idly by while prejudicial error is being committed and speculate upon the result of the verdict. (State v. Baker, 28 Ida. 727, 156 Pac. 103.)
Where the evidence in a given case clearly shows the defendant to be guilty of an unprovoked murder, without any justification or excuse, and the jury could not, under their oaths, have brought in any other verdict than was rendered by them, even conceding that there is error in the instructions, and the right of the appellate court to review such errors when not assigned, the judgment of the trial court should not be reversed, for the reasons as announced in an opinion by the late Justice Stewart, in the case of State v. Marren, 17 Ida. 766-790, 107 Pac. 993, 1001:
*378“Although the instruction referred to contains matter which should not have been given to the jury, we are,' however, of the opinion that the appellant could have been in no way prejudiced by the giving of such instruction. Other instructions were given to which no exception was- taken, which clearly charged the jury with reference to circumstantial evidence; and not only that, but the evidence in this case is so clear and convincing of the guilt of the appellant that the jury could in no possible manner have been influenced to return a verdict of guilty by the objectionable matter contained in this instruction; and from the evidence, the jury could not, without a violation of their oaths, fail to have found the defendant guilty, and because of this, the defendant could not have been prejudiced by the giving of such instruction.
“Bev. Codes, sec. 8070, admonishes this court: ‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’ And again, Bev. Codes, sec. 8236: ‘Neither a departure from the form or mode described by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.’ The substance of these statutory provisions is that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon the evidence no other verdict could possibly have been found. [Citing cases.] ”
In State v. Silva, 21. Ida. 247-257, 120 Pac. 835-839, it is said: “That if the evidence of the defendant’s guilt is satisfactory, that is, such as ordinarily produces a conviction in an unprejudiced mind, beyond a reasonable doubt, and the result could not have been different had the instruction been omitted, the case would not be reversed because of such erroneous instruction. ’ ’
*379In State v. Brill, 21 Ida. 269-275, 121 Pac. 79, 80, this court says: “That even though an instruction is erroneous and ordinarily the error would be material, yet if the evidence of the defendant’s guilt is satisfactory, that is, such as ordinarily produces moral certainty, or conviction in an unprejudiced mind, and the result would not have been different had the instruction been omitted, the ease will not be reversed because of such erroneous instruction.”
The judgment of the trial court should be affirmed.