dissenting. — I do not concur with the
other judges in the opinion just delivered in this case. By ]aw otl this indictment is founded, every murder committed, either, 1, by poison; 2, by lying m *385wait; 3, in committing arson; 4, rape; 5, robbery; burglary; and 7,in committing any other felony, shall be deemed murder in the first degree. The indictment under this act, for any one of these murders, must charge the particular manner of the killing; if by “poison,” it must be so charged; if “ by lying in wait,” must be so charged; if in attempting to “perpetrate son,” it must be so charged; and so of the other specially enumerated. The proof must correspond with the charges in the indictment, and the prosecutor must make that proof, and must show that the killing was done in the particular manner charged. ’ If charged to been done by “poison,” the prosecutor must prove it to have been done by “poison;” if charged to have done by “lying in wait,” the prosecutor must prove it to have been done “by lying in wait;” and so of the other cases. The same section which declares these specially enumerated cases to be murder in the first degree, provides, also, that every murder committed “ by any other kind of wilful, deliberate and premeditated killing,” shall be deemed murder in the first degree. For a murder this character, the indictment must charge it to have been “ wilful, deliberate and premeditated.” The proof must here correspond with the charge also, and must .show that it was “wilful, deliberate and premeditated.” As when the indictment charges the murder to have been by “ poison,” it is necessary to prove it to have been done by “ poison;” so, also, when the indictment charges it to have been “ wilful, deliberate and premeditated,” under the same law, it is necessary to prove that the killing was “ wilful, deliberate and premeditated.” The poisoning is a principal ingredient of one murder in the first degree, and it must be proved when charged; and the wilfulness, deliberation and premeditation, are principal ingredients of another murder of the first degree; and when charged, for the same reason, must be proved also. At common law, where the homicide is established, the law implies the malice, and the prosecutor is not bound to prove it; but the defendant must show the absence of malice, a thing as difficult for him to prove in many cases, where íeally there was no malice, as it would be for him to prove his innocence of the charge against him, in many cases, where he was really innocent; and a thing which is about as reasonable in the law to require him to prove, as it would be, if he were charged with murder, to require him to prove the murderer’s innocence. But the common law does, in its thirst for vengeance, *386where there has been a killing, (to use a strong expression,) in some cases imply malice, where really no malice existed, rather than lose an occasional subject where malice did exist. I think our law intended to remedy this hardship. In my view of this part of our statute, malice cannot be implied, and the defendant is not bound to prove the absence of malice; but the prosecutor is bound to prove that the killing was “ wilful, deliberate, and premeditated.” By the term “wilful,” it may be understood that the killing was designed, and not by accident; by “ deliberate,” that it was done after reilect-ing and weighing the matter well; by “premeditated,” nearly the same thing, but a larger and greater degree of deliberation, or, rather, a determination beforehand to do the act. When the murder is not proved to be “ wilful, deliberate, and premeditated,” it must fall within the sac-ona degree of that offence, unless it has been declared to be manslaughter, or excusable or justifiable homicide. The case before us was not one specially enumerated -in the act referred to, but comes under the description of . “wilful, deliberate, and premeditated” killing; and as the killing was not proven to have been “ wilful, deliberate, and premeditated,” in my understanding of the evidence, the defendant should have been found guilty,not of murder in the first, but of murder in the second degree, if the evidence was sufficient to justify that finding. Iam of opinion, therefore, that the judgment of the circuit court ought to be reversed, and that the cause ought to be remanded.