I concur in the conclusion, but I would suggest that the presiding judge is certainly mistaken in his construction of the fifth section of the act of April 12th, 1862. The last “ or ” in that section should be read “ and.”
Compare that section with section 4th. The killing, without premeditated design, in the commission of a felony, is not excepted in the last sentence of the fifth section, but is made murder in the second degree, by it. The whole act, and especially section fifth, is crudely drawn, but I think its meaning is quite plain.
Judgment affirmed.
Leonard, Clerke and Sutherland, Justices.]