The counsel for the appellant have pressed upon our attention the claimed insufficiency of the evidence to sustain the verdict of the. j ury; as also, the prejudice resulting to the defendant by the second and third charges of the court. But since a new trial will be ordered for another reason, it is neither necessary or proper for us to pass upon the sufficiency of the evidence. It may be different upon another trial, and in any event *418will be passed upon by another jury. So of the second and third charges. They were adapted to the supposed peculiar condition of the jury in their disagreement, and no such a case is at all likely, nor indeed hardly possible to again arise. We pass therefore to the only question which it is necessary for us now to decide, and that is, as to the sufficiency of the indictment to sustain a conviction for murder in the first degree under our statute.
The indictment in this case is substantially the same as in the case of The State v. McCormick, decided at the present term (ante, 412). Like that, it charges the assault and the heating to have been done feloniously, willfully, deliberately, premeditately and of malice aforethought, but it does not charge the hilling to have been willful, deliberate and premeditated. Since this case is like that in this particular, and we have given to that our careful and deliberate consideration, and expressed our views in the opinion filed therein, it becomes unnecessary to do more than refer to that case and the authorities cited in it for a disposition of this. That decision rests upon the idea that although the indictment is a good indictment for murder at the common law, by which the offense was equally complete, whether the hilling was premeditated or was 'the result of a felonious assault with malice aforethought; yet since our statute has divided the crime of murder into the first and second degree, and requires that the hilling shall be premeditated (t\\s,t is, intended) in order to constitute murder in the first degree, such premeditated killing must he charged in the indictment as well as proved bjr the evidence in order to sustain a conviction. In other words, since our statute has narrowed the field of murder punishable with death (murder in the first degree), and excluded therefrom certain homicides, which were murder at the common law, an indictment for murder at common law would not nec*419essarily include the charge of murder in the first degree under our statute; for murder at the common law may have been committed without the willful, deliberate and premeditated intent to MU, required by our statute to constitute murder in the first degree.
To illustrate a little further. Suppose that at the common law the crime of horse stealing was punishable with death; but that our statute divided the crime into degrees, and the larceny of a horse in the night-time was made the first degree, punishable with death, and the larceny of a horse in the day-time was made the second degree, punishable with imprisonment. Now, to charge the offense of the first degree would require the charge that it was done in the night-time, in addition to the charges required at the common law; and the charge of the crime as at the common law would not necessarily constitute the statutory offense of the first degree punishable with death. So of the charge of murder in the first degree under our statute; the indictment must contain, in addition to the necessary common-law averments, the further charge that the Mlling was willful, deliberate and premeditated ; unless it be where the killing is committed in the perpetration of some of the offenses named in the latter part of the section (4192) and as to which we express no opinion.
The indictment in this case is not a sufficient indictment for murder in the first degree under our statute, but is good for murder in the second, degree, and the defendant may be tried thereon for that offense.
In tins case, unlike that of The State v. McCormick, supra, the defendant denies the sufficiency of the evidence to establish his guilt in any degree, and demands that the judgment shall be reversed and a new trial awarded; and he is clearly entitled to this.
Reversed.