The deceased was killed by a stab in the breast. The testimony tended to show that it might have been made with a knife taken from the prisoner after his arrest on the day of the homicide. The state called a physician of fourteen years’ practice, who produced said knife, and testified that when it came into his possession he examined it with a glass and that there seemed to be a stain of a reddish color on the blade. He was then asked, subject •to exception, to give his opinion as to the cause of the stain. He answered, “We thought it was stained with blood.” The prisoner’s counsel especially excepted to the answer because the witness said, “We thought,” whereupon the witness said, “I thought it was.” Here was no error. In the first place, the witness was not giving his opinion as an expert, but his opinion based upon what he had observed and testified to, which was proper. Besides, he was an expert, as he was a physician of experience, and could testify as such, the matter to which he was testifying coming within the scope of’his profession and experience. Nor did the *472use of the plural instead of the singular pronoun vitiate. The question called for the opinion of the witness only, and because he happened to use language indicating, what does not appear, that another examined the knife with him, affords no ground for reversal.
The testimony as to what took place between the prisoner and the deceased in the road on Sunday, two days before the homicide, was not irrelevant nor too remote, as claimed. It bore directly on the question of malice and motive, as it tended to show that a crisis had been reached in their affairs, and that the prisoner was very angry at the deceased, as he then subjected her to much abuse and great personal violence because she refused to go home with him and to live with him again, but insisted upon returning to Dilworth’s, whence she had just come.
What Lyons testified about hearing the deceased say that the prisoner had hit her with two links of a chain was stricken out at the prisoner’s request, on its appearing that the prisoner was not present when it was said, and no exception was taken concerning it, so there is no ground for the argument addressed to us on that point.
The admissibility of the prisoner’s threats to kill the deceased if she left him and went with another, the testimony tending to show that that event had happened, or that the prisoner thought it had, was settled when the case was here before — 64 Vt. 466. The fact that the testimony now places tne making of the threats a few months earlier than it did before does not go to its competency, but only to its weight.
What Bolger said about the prisoner being the one who killed the woman and the prisoner’s replies thereto, as they were more or less inculpatory of him, were admissible on general principles. The fact that both were under arrest at the time does not affect the question of admissibility.
The prisoner was properly put. on trial again for murder in the first degree, notwithstanding he had before been con*473victed of murder in the second degree and a new trial granted on exceptions. The authorities differ on this question. In many of the states, and probably in a majority of them, it is held that when, on an indictment for murder, the accused is found guilty of murder in the second degree it is virtually an acquittal of murder in the first degree, and that, if the verdict is set aside and a new trial granted at the instance of the accused, he cannot, on such trial, be convicted of murder in the first degree ; that the only effect of setting aside the verdict for the lesser crime is, to leave that issue open for another trial and also to leave undetermined the further question of whether the accused had committed any criminal homicide of a grade less than murder in the second degree. The case of State v. Belden, 33 Wis. 121, 14 Am. Rep. 748, is a leading case of this kind.
But in other states the contrary is held. They say that the necessary result of reversing the judgment and granting a new trial is, to set aside the whole verdict, and that having been done at the instance of the accused, it can neither operate as an acquittal nor a bar to the further prosecution of any part of the crime charged ; that the verdict being set aside, it leaves at issue and undetermined the question of the homicide and also the question of whether the accused committed it if one was committed; that on the retrial on a plea of not guilty, the legal presumption of innocence prevails, and that the state is bound to prove every essential fact; that the only effect, therefore, that can be given to the part of the verdict that acquitted the accused of murder in the first degree after the rest of it has been set aside is, to regard it as finding the quality of an act, the existence of which is undetermined, which would be a verdict to the effect that if the accused committed the homicide it was not such a killing as made it murder in the first degree, which would be untenable, as there can be no legal determination of the character of the malice of the accused in re*474spect to a homicide that he is not found to have committed, ■or rather, of which, under his plea, he is presumed to be innocent. A verdict of murder in the second degree is only an implied acquittal of murder in the first degree; and if the verdict from which the inference is drawn is set aside, nothing remains to sustain the inference, and the verdict and its incidents fall together, and the indictment is left to stand .as to the crime oí which the accused was convicted as though there had been no trial. This view is sustained by Bailey v. State, 26 Ga. 579; State v. Behimer, 20 Ohio St. 572; United States v. Harding, 1 Wall. Jr. 147, and other •cases. We understand this to be the view that has obtained and been practiced upon in this state, certainly when the result of the former trial was not, in effect, as it was not here, an acquittal of another crime charged, but only a failure to find the requisites to aggravate the crime.found to a higher grade. State v. Kittle, 2 Tyler, 471, is not to the contrary.
Nor does this view contravene the principle that one cannot be twice put in jeopardy for the same offence, for that means, without his consent, and the matter of taking exceptions is a privilege accorded to the accused but not to the state, and he can avail himself oí it or not as he pleases. If he does avail himself of it, he thereby asks for a new trial or a discharge altogether, as the case may be, and in asking for a new trial, he is deemed to waive his right to immunity from further jeopardy in case a new trial is granted. People v. Palmer, 109 N. Y. 413, 420. The authorities on both sides of this question are referred to in a note to Commonwealth v. Arnold, (Ky.) 4 Am. St. Rep. 117.
There are one or two other exceptions to the admission of evidence, but they are of minor importance and not sustained.
The prisoner excepted to the charge as to what would not ■ .be sufficient to reduce the crime from murder to man*475slaughter. It is claimed that the charge on this point is ■essentially wanting in completeness of statement of what the distinction is between murder and manslaughter; that is, of what will reduce the crime of murder in the second degree to manslaughter. The whole charge is made a part of the •exceptions, and on looking into that, we find that in parts of it not set out in the exceptions the court fully and accurately stated that distinction and what would reduce the crime of murder in the second degree to manslaughter. It is further claimed that the court did not state, even in the abstract, that if the jury failed to find beyond a reasonable doubt that the fatal blow was struck with malice aforethought it would reduce the crime to manslaughter. But in another part of the charge the court told the jury in so many words that there could be no conviction of murder unless the existance of malice was established beyond a reasonable doubt.
The court .charged that if the jury found that the prisoner struck the fatal blow, they would consider, among other things, what happened between them in the room when she was killed, as far as they thought it fairly inferable from the sounds and conversation that were testified to, if they believed that testimony to be true, and from it all determine what took place between the parties before the fatal blow was struck, and then, by an application of the principles before explained to them, determine the degree of criminality that attached to the prisoner’s act. The respondent excepted to the clause relating to things fairly inferable from the sounds and conversation testified to. The jury had before been fully instructed as to the measure of proof, and told that the state must establish beyond a reasonable doubt every fact necessary to make out guilt. The prisoner’s counsel suggests nothing on the point of this exception that shows error.
The assistant judge who did not sit in this trial because he was a juror on the former trial was not, probably, disquali*476fied for that reason; but whether he was or was not, it is not a ground of exception that he did not sit. The statute makes two judges a quorum, therefore two constitute a legal court, and it is not the legal right of a part}’" that all shall sit if not disqualified. It has always been the practice, as far as we know, for one or the other of the assistants to be absent occasionally though not disqualified, and it never has been thought to lie with a party to object. It is analogous to the case of a grand jury, where eighteen are called but twelve can find a bill. It is not necessary to the validity of an indictment that all should participate. If twelve participate it is enough, though the others are not disqualified. State v. Brainerd, 56 Vt. 532. State v. Blair, 53 Vt. 24, is not opposed to this view.
Judgment that there is no error in the proceedings of the county court, and that the respondent take nothing by his exceptions.