The following opinion was delivered :
By the Chancellor.The plaintiff in error has been convicted of the crime of murder, for an offence committed subse- • quent to the revised statutes ; but the conviction is upon an indictment in the usual form, in which indictments for that offence were framed previous to the revision. The important question presented by this writ of error, therefore, is, whether the revised statutes, in which the crime of murder is attempt.ed to be defined and declared, have made it necessary for the public prosecutor to change the common law form of the indictment for an offence of that description.
Where an offence is created by statute, which was not an offence by the common law, it is a general rule that the indictment must charge the offence to have been committed under the circumstances and with the intent mentioned in the statute, which of course contains the only appropriate definition of the crime. State v. Jones, 2 Yerg. Ten. R. 22. State v. O’Bannon, 1 Bayley's Law R. 144. But even in that case it is not necessary to pursue the exact words of the statute creating the offence, provided other words are used in the indictment which are equivalent, or words of more extensive ■ signification, and which necessarily include the words used in *173the statute—as where advisedly is substituted for knowingly, or maliciously for wilfully, and the like. The King v. Fuller, 1 Bos. & Pull. 180. United States v.Bachelder, 2 Gall R. 15. It is otherwise in indictments for common law offences, where the law has adopted certain technical expressions to define the offence, or to indicate the intention with which it was committed ; in which cases the crime must be described, or the intention must be expessed by the technical terms prescribed, and no other. Thus, in an indictment for murder, the terms murder of his malice aforethought are considered absolutely necessary in describing the offence ; and if these words are left out of the indictment, it will be deemed a case of manslaughter only. In determining the question whether an indictment should be drawn as at the common law, or should appear to be founded upon a statutory provision which is applicable to the offence, the following" rules are to be observed: If the statute creates an offence, or declares a common lawoffence, when committed under particular circumstances not necessarily included in the original offence, punishable in a different manner from what it would have been without such circumstances ; or where the statute changes the nature of the common law offence to one of a higher degree, as where what was originally a'misdemeanor is made a felony, the indictment should be drawn in reference to the provisions of the statute creating or charging the nature of the offence, and should conclude -against the form of the statute ; but if the statute is only declaratory of what was previously an offence at common law, without adding to, or altering the punishment, as was the statute of 25 Edward 3, declaring what should be considered and adjudged treason, the indictment need not conclude against the form of the statute. 1 Deae. Grim. Law, 661.
The object of the legislature in adopting the provisions of the revised statutes relative to homicide, in the recent revision of the laws, certainly was not to create a new offence of murder; but the intention undoubtedly was to restore the ancient common law on that subject, as it existed at the time when the common law form of indictment was originally adopted, and to draw a proper line of discrimination, if possi*174ble, between the offence which was hereafter to be considered a felonious killing, with malice aforethought, which alone constitutes the crime of murder, and what was to be deemed a felonious killing without such malice. How far they have succeeded as to the last of these objects, may perhaps be considered as a matter of some doubt. But they have unquestionably succeeded in restricting some cases to the grade of manslaughter, which, upon the principles of the common law, never ought to have been considered or adjudged to be offences of a higher grade ; such as the unintentional killing of a person, by an offender who was engaged in a riot or other of-fence, that was a mere misdemeanor, and not a felony.
There is another class of cases, referred to on the argument as cases of murder at the common law, which, under the provisions of the revised statutes, must hereafter unquestionably be considered and adjudged to be manslaughter, and not murder. And there is also another and much larger class of cases which hereafter must be deemed murder, by reason of the implied malice that will now attach to the unlawful killing; which cases, before the revision of the statutes, were cases of manslaughter only. The two classes to which I allude, depend, however, upon a principle which does not require any change to be made in the common law form of the indictment for murder. Malice was implied in many cases at the common law, where it was evident that the offenders could not have had any intention of destroying human life, merely on the ground that the homicide was committed while the person who did the act was engaged in the commission of some other felony, or in an attempt to perpetrate some offence of that grade. Every felony, by the common law, involved a forfeiture of the lands or goods of the offender, upon a conviction of the offence; and nearly all offences of that grade were punishable with death, with or without benefit of clergy. In such cases, therefore, the malicious and premeditated intent to perpetrate one kind of felony, was, by implication of law, transfered from such offence to the homicide which was actually committed, so as to make the latter offence a killing with malice aforethought, contrary to the real fact of the case *175as it appeared in evidence. This principle is still retained in the law of homicide; and it necessarily follows, from the principle itself, that as often as the legislature creates new felonies, or raises offences which were only misdemeanors at the common law to the grade of felony, a new class of murders is created by the application of this principle to the case of killing of ahúman being, by a person xvhois engaged in the perpetration of a newly created felony. So, on the other hand,xvhen the legislature abolishes an offence which at the common Iaxv was a felony, or reduces it to the grade of a misdemeanor only, the case of an unlawful killing, by a person engaged in the act which xvas before a felony, will no longer be considered to be murder, but manslaughter merely. Such changes in the laxv of murder have often occurred, both in this country and in England; yet it never has before been thought necessary to change the common laxv form of the indictment to meet cases of this description. The court and jury in such cases immediately apply the common law principle, and the killing is adjudged to be murder or manslaughter, according to the nature and quality of the crime that the offender was perpetrating at the time the homicide was committed.
Let us then apply these principles to the case now under consideration. The revised statutes having declared that hereafter offences punishable xvith death or with imprisonment in the state prison, and such offences only, shall be deemed felonies, it folloxvs of course that an accessory to a suicide, or a person who "unintentionally kills in an attempt to perpetrate a first offence of petit larceny, could not noxv be guilty of the common law offence of murder; and therefore the jury could have found him guilty under an indictment like the one noxv before us. The unintentional killing of a female, in an attempt to produce an abortion, with her own consent, was notin itself murder, although at the common laxv, if she xvas quick with child, it formed a very aggravated case of felonious homicide; and it is noxvmademurder inEngland, by the operation of the statute which makes the destruction of the child a capítol felony. It xvas also murder here, by the operation of the third subdivision of the fifth section of therevis*176e(j statutes, which attempt to define the crime of murder, until the legislature, by the amendment of the ninth section of the next title, 2 R. & 661, § 9, 3 R. S. app. 158, § 58, made the killing of the mother, as well as the child, a case of manslaughter only. Some other cases of unintentional killing, by persons engaged in riots and other misdemeanors below the grade of felonies, which previous to the revision had also been improperly considered as cases of murder contrary to the principles of the ancient common law, are now restored to that grade of homicide to which they properly belong. All offences of that description are now placed in the class of homicides committed without malice aforethought; except where the killing is perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life; which circumstances now, as at the common law, are sufficient to authorize the jury to find the defendant guilty of killing with malice aforethought. 2 R. S. 657, § 5, sub. 2, From this examination of the subject, I have arrived at the conclusion that a common law indictment for murder is proper, and under the provisions of the revised statutes. And a defendant cannot be convicted on such an indictment of a felonious homicide with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder.
The cases referred to on the argument, from the Pennsylvania and Virginia reports, have no application to the question under consideration, as the statutes of those states have divided murder into two grades, and have provided a way in which the grade of the offence shall be ascertained upon an ordinary indictment; which indictment the legislatures of those states evidently intended should be drawn as at the common law, so as to include both grades of the offence. The only cases I have been able to find in the reports of our sister states, which bear any analogy to that now under consideration, is one in' the state of South Carolina, and two other's which have arisenin the state of Indiana. In the case of Guy Raines, who was indicted under the statute of South Carolina, to increase the punishmentinflieted onpersonsconvictedofmurderingslaves, *177which statute provides, that if any person shall thereafter wilfully, maliciously and cjeliberately murder any slave within the state, such person on conviction shall suffer death without benefit of clergy, the indictment pursued the words of the statute, and concluded contra formam statuti. But judge Col-cock held that the indictment was insufficient He said that the offence should have been charged in the indictment as at common law; and that all the essential parts of the common law indictment should have been pursued. 3 M' Cord's Law R. 543. In the state of Indiana, as I infer from judge Blackford’s reports, they have a statute declaring what shall constitute the crime of murder, and prescribing the punishment of the offence, substantially as at common law, although not in the words of the common law indictment for that offence; and yet the supreme court of that state have twice decided that a common law indictment was sufficient. Fuller v. The State, 1 Blackf. R. 65. Jerry v. The State, id. 396.
One object of our revised statutes was to get rid of those technical difficulties that had so justly been complained of as a disease of the law; which, without being necessary for the protection of any substantial right of the accused, had so frequently entangled justice in the net of form; and this object of the legislature will certainly be best promoted by adhering to the common law form of indictment in cases of murder, the nature of which offence has not been materially changed in the revision of the laws.
I think the judgment of the court below is right, and that it should be affirmed. I am also of the opinion that in a case like the present, where the execution of the sentence is respited by the governor until a particular day, it is the duty of the sheriff to proceed and execute the judgment of the court at that time, miles a further respit is granted, or the judgment has been reversed or annuled in the mean time. I am also of opinion that this is not a case in which it is necessary to sue out a writ of habeas corpus, and to have the convict brought into the supreme court before the sentence of the law can be executed upon him. The judgment of affirmance may, therefore, contain a special direction to the sheriff to execute the sentence *178on the day to which the execution thereof was last respited , ,, J by the governor.
^ ^Ie unanimous opinion of the court that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.