dissenting: I dissent. Since the explicit declaration of this court in the cases of The State v. Reddick, 7 Kas. 143, and The State v. Huber, 8 Kas. 447, that upon the trial under an information for an offense where by law there may be a conviction of different degrees of the offense, it is the duty of the jury, if they convict, to specify in their verdict of what degree of the offense they find the defendant guilty, there is no reasonable excuse for a .trial court to accept a verdict in a capital case like the foregoing, of “ guilty as charged.” If a defendant obtains an unjust advantage by such a verdict, it is the fault or carelessness of the trial court, or of the prosecuting attorney. While I do not think such a verdict void, or a nullity, yet I am of the opinion that the verdict must speak for itself, and that we cannot go to the evidence or the instructions to ascertain its meaning. Under such a verdict, it seems to me that the punishment to be inflicted ought to be for the lowest degree of the offense included in such a finding, rather than the highest. Especially do I think that this ought to be the rule, where the highest degree of the offense demands the infliction of the death penalty. I am unwilling to say that the defendant must die upon the verdict rendered.”
It will be noticed that the court in its opinion virtually assumed that the verdict upon which the defendant was sentenced was not void; and as counsel for the defendant and the dissenting Chief Justice admitted that the verdict was not void, this course seemed to be-entirely proper. It would have been useless indeed to discuss what was already admitted. The court, however, attempted in the opinion to show that this court had not in its previous decisions held that such verdicts are void, but that in effect it had really held that *652they are valid; and then follows in the opinion of the court, the following words, to wit: “We must, then, not consider said verdict as void, but as valid;” and why should we not consider all such verdicts as valid, until -properly set aside for irregularity? Such a verdict is a general finding against the defendant of every fact, and of everything stated or charged against him in the information; and in the present case the information clearly and beyond all question charges the defendant with committing murder in the first degree. In this state a defendant can be convicted only of what he is in terms charged with; and the information or indictment must set forth “the fads constituting the offense” with which he is charged, and this must be. done “in plain and concise'language, without repetition.” (Cr. Code, § 103.) If it be desired that the defendant shall be convicted of murder in the first degree, the indictment or information must charge that offense against him, and must set forth the fads constituting such offense. An ordinary-common-law indictment for murder would not be sufficient in this state for murder in the first degree. In this our laws differ from the laws of some of the other states. Of course, in states where a common-law indictment is sufficient for murder or felonious homicide in all its degrees, and such an indictment is used, it would be absolutely necessary that the jury should find the degree of which they believed the defendant to be guilty; for no court could know, from a general verdict of guilty, and from an ordinary common-law indictment for murder, that murder in the first degree was intended to be found by the jury. But where the indictment or information is required to state the facts constituting the offense, as in this state, and when the indictment or information does set forth the facts, and charges murder in the first degree, as the information in this case does; and where it states facts which undoubtedly constitute murder in the first degree, as the information in this case does; and the jury then find “the defendant guilty in manner and form as charged in' the information,” they unquestionably, by all rules of language and of interpretation, find the defendant *653guilty of committing murder in the first degree. There can be no escape from this conclusion. And there is no necessity for going elsewhere than to the verdict and the information to know this; although, in the present case, other portions of the record also show, and show beyond all question, that the jury intended to find the defendant guilty of murder in the first degree. In all cases where a pleading states the facts, a general finding thereon and in favor of its truth is equivalent to full special findings of the truth of all the facts set forth and alleged therein. In the present case the general verdict of “guilty in manner and form as charged in the information,” is equivalent to full special findings against the defendant of all the facts stated or alleged against him, and that he is guilty of everything charged against him in the information. And he is charged with committing murder in the first degree. With respect to the effect of general findings in civil cases, see Knaggs v. Mastin, 9 Kas. 532; Bixby v. Bailey, 11 Kas. 359; Winstead v. Standeford, 21 Kas. 270. With respect to general verdicts in criminal cases, see Carlton v. Commonwealth, 46 Mass. (5 Metc.) 532; Commonwealth v. Birdsall, 69 Pa. St. 482; State v. Tuller, 34 Conn. 282; Dean v. State, 43 Ga. 218. Many other cases might be cited, but these are deemed to be sufficient.
Assuming, then, that the verdict in the present case is not void, or waiving that question for the present, what should the court below have done in the case ? That the verdict is irregular in not stating specifically (as required by § 239 of the criminal code) that the defendant was guilty of murder in the first degree, (just what it in fact did state in general terms,) must be admitted; and if the defendant had asked for a new trial, on the ground of such irregularity, the court below should and would unquestionably have granted it. That a new trial will be granted under such circumstances, is in effect the sum and substance of nearly all the decisions upon this question. In quite all the cases involving this question, the defendant asked for a new trial, and the appellate court simply ordered that it should be granted him. (The State v. *654Reddick, 7 Kas. 144, and cases there cited; The State v. Huber, 8 Kas. 447.) And it has seldom happened that any court has awarded a new trial against the wishes of the defendant or without his consent, and such a proceeding is (or rather would be if resorted to) against all reason and against nearly all authority. Even the cases of Dick v. The State, 3 Ohio St. 89, and Hogan v. The State, 30 Wis. 428, so confidently relied on by the defendant, do not show that the defendant did not ask for a new trial. Besides, in both of these cases, the decisions of the appellate courts were against the trial courts, by divided appellate courts, and by a bare majority of the judges in each of the appellate courts. In the Ohio case, both Ranney and Thurman, the ablest of the judges, dissented from the decision of the other three judges. In the "Wisconsin case, the indictment did not show that the defendant was guilty of murder in the first degree, nor even show, by apt and proper averments, what the degree of the offense was, of which it attempted to allege that the defendant was guilty.
It may be that in some cases the appellate court, after setting aside a judgment at the defendant’s request, which judgment was not ■void but only voidable, would have the power to grant a new trial, although the defendant had not asked for it in the court below, and some of the authorities would seem to indicate that this might be done; but upon this question we do not now desire to express any opinion. A judgment, however, rendered upon nothing, or rendered upon an absolutely void verdict, or upon anything else which is absolutely void, would be itself void. A judgment rendered upon a void thing, would be virtually rendered upon nothing; it would be given without jurisdiction, and" having nothing to stand upon, would itself be void. And here I would reiterate the substance of what was said in the former opinion of this court in this case concerning jeopardy. That statement concerning'jeopardy in the former opinion might, in some cases, need explanation, but generally it will be found to be correct. A defendant can never be put in jeopardy a *655second time for the same offense, except with his own consent; and generally, he can consent only where he obtains some legal benefit by consenting. And jeopardy always commences in all cases at least as early as the final submission of the case to the jury, unless some unforeseen event, not under the control of the court or the prosecution, intervenes and presents a reasonable barrier, in the due administration of justice, to the rendering of a legal verdict, and such a verdict, is not rendered. In the present case, nothing intervened to reasonably prevent a legal and valid verdict from being given. No person connected with the court or with this case became sick or absent, and the jury did not fail to agree upon a verdict. A verdict was in fact rendered and nothing probably prevented this verdict from being made regular in every respect, except an error of the court below in instructing the jury. And so far as the record of this case shows, the defendant has never yet consented to be again put in jeopardy, or to be again tried for the same offense. He did not object to the verdict, or ask to have it set aside, but merely objected to being sentenced upon it as for murder in the first degree. Nor did he consent to a discharge of the jury. Indeed, he has not done anything in the court below which might reasonably be construed into a waiver of his right to plead “ once in jeopardy.” On the oral argument, however, of the present motion for a rehearing of the case in this court, the defendant’s counsel asked for a new trial. And this appears to be the only consent that the defendant has ever given, either expressly or impliedly, to be again placed in jeopardy or for a new trial. We shall not however in this place consider his right to now ask for a new trial; but shall here consider the question whether the court below erred in rendering the judgment which it did upon the verdict of the jury. Assuming that the verdict is not void, then the only reasonable judgment that could be rendered in the case would be for either the highest or the lowest offense included and charged in the information. There can be no good reason for selecting any intermediate offense charged, upon which, or for *656which to- sentence the defendant. Murder in the first degree is the highest offense charged in the present information, and a simple assault is the lowest. If it were possible for a person to commit an attempt to commit an assault, then that would be the lowest, but we suppose that such a thing is impossible; for an assault is itself only an attempt to commit some other offense. The information under consideration •charges the offense of murder in the first degree; but in this single charge are also included murder in the second degree, manslaughter in four degrees, assault with intent to commit each of those offenses, assault with intent to commit great bodily injury, assault and battery, and a simple assault. Under the information, the jury might have found the defendant guilty of any one of these offenses. (See State v. O’Kane, 23 Kas. 244, for a case where a defendant was found guilty of assault and battery under an information charging murder in the first degree.) In finding the defendant guilty of any ou'e of these offenses, the jury must necessarily find him guilty of ail the lower offenses necessarily included in the higher;, and a general verdict of guilty as charged in the information, is necessarily a verdict that he is guilty of every offense charged or included in the information. Such a verdict must surely be a verdict that the defendant is guilty of murder in the first degree, and though irregular, it will sustain a sentence for murder in the first •degree; but if it will not, then it must necessarily be void, so as not to sustain any sentence, or else it must be- capable of sustaining a sentence for a simple assault only — the lowest offense charged in the information. And in either ease, the present sentence and the present imprisonment of the defendant in the penitentiary must be' illegal and void ; and habeas corpus is a proper remedy.for his discharge. If the verdict is void, or if it will sustain a sentence only for the lowest offense charged in the information, which is a simple assault, then he ought to be released from the penitentiary on habeas corpus; for he cannot be legally imprisoned in the penitentiary on a void verdict, or for a simple assault, or even for an *657assault and battery. The court has no jurisdiction to imprison him in the penitentiary in such a case. But in his original brief filed in this court, he asked to be sentenced for manslaughter in the fourth degree. According to the argument made in this case on the motion for a rehearing, he not only asked this, in this court, but he had also asked it in the court below at the time he was sentenced. Now why did he not ask to be sentenced for a simple assault only, or for an assault and battery, or for an assault with the intent to commit some one of the other offenses charged in the information ? Why did he not ask to be sentenced for an offense lower than manslaughter in the fourth degree? Why did he ask to be sentenced for so high an offense, when, according to his own theory, he cannot legally be sentenced for anything higher than a simple assault, the lowest offense charged in the information? Clearly, if the verdict is sufficient to sustain a sentence for manslaughter in the fourth degree, it is sufficient to sustain a sentence for murder in the first degree. In the cases of Fitzgerrold v. The People, 37 N. Y. 413, and Kennedy v. The People, 39 N. Y. 245, the court of appeals of New York held that such a verdict would sustain a sentence for murder in the first degree. In the case of Johnson v. The Commonwealth, 24 Pa. St. 386, the supreme court of Pennsylvania held that such a verdict would sustain a sentence for murder in the second degree, which was the highest offense charged in the indictment. In this last case cited, the court say in their opinion, that “ The cases of The Commonwealth v. Earle, 1 Whar. 525, and Commonwealth v. Miller, Lewis’s Crim. Law, 398, 401, show that where the indictment charges the murder to have been perpetrated ‘ by means of poison ’ or ‘ by lying in wait,’ a verdict of ‘guilty in manner and form as the prisoner stands indicted,’ does ‘ascertain’ the murder to be of the first degree;” (p. 389.) In the case of Conkey v. The People, 5 Park. (N. Y.) Cr. 32, it was held that a verdict finding “the prisoner at the bar guilty of the offense charged in the indictment,” would sustain a sentence for the highest grade of the offense charged. The case of Harman v. The Commonwealth, *65812 Serg. & R. 69, is to the same effect. Indeed, the authorities are generally to this effect; and this is so, even where the different offenses are charged in different counts. (Wharton’s Cr. Law, §§ 3176 to 3178, 418, 3208, 3297.) And while the court will generally, upon a general verdict of guilty, sentence for the highest grade of the offense charged in any count of the indictment, yet it may in some cases impose a distinct sentence upon each count of the -indictment. (Commonwealth v. Birdsall, 69 Pa. St. 482.) See also the cases heretofore cited with respect to general verdicts in criminal cases.
The verdict in the present case was unquestionably intended by the jury to be a verdict for murder in the first degree; and if the defendant was dissatisfied with it, he could have had it set aside, and a new trial granted, merely by asking for it. But he refused to ask for it, and in so doing took a risk which no person charged with murder in the first degree, and convicted, and liable to be sentenced upon the verdict to suffer death for his crime, should ever take. But this may perhaps seem like mere clap-trap, to speak of death as a punishment for murder in the first degree; for no person has ever yet been executed, under our present laws, for murder in any degree, and probably no person ever will be. Our present laws upon this subject have been in force for nearly, nine years. (Comp. Laws 1879, p.762, §§259 to 262.) The decisions, however, in the cases of The State v. Reddick, 7 Kas. 143, and The State v. Huber, 8 Kas. 447, were rendered under our former laws, when defendants, who were properly convicted and’sentenced for murder in the first degree, were executed.
The defendant, by his counsel, now asks and urges that this court shall set aside the judgment of the court below,. and grant him a new trial; and if the new trial cannot be granted, he still urges that we shall set-aside the judgment of the court below, so as to place the defendant back in the same situation and condition in which he was prior to the rendering of such judgment, and subsequent to the rendering of the verdict; and he urges this upon the ground, among others* *659that the court below failed to inform him of the verdict of the jury, and to ask him whether he had any legal cause to show why judgment should not be pronounced against him. It is true that the record fails to show that this was done. The record shows that the defendant excepted to the sentence, on the ground that the verdict was not sufficient to sustain such a sentence; but it does not in any other manner show that the defendant was informed as to what the verdict was, or that he had any opportunity extended to him to show cause why judgment áhould not be pronounced against him. We have, with great doubts and many misgivings, come to the conclusion to grant this last request of the defendant. The authorities seem to sustain such a course. See Dodge v. The People, 4 Neb. 221, 233; Keech v. The State, 15 Fla. 592, 609; James v. The State, 45 Miss. 572, 580; Perry v. The State, 43 Ala. 21; Safford v. The People, 1 Park. (N. Y.) Cr. 474, 476; Messner v. The People, 45 N. Y. 1; Hamilton v. Commonwealth, 16 Pa. St. 129; Dougherty v. Commonwealth, 69 Pa. St. 286.
We wish to confine this decision within the particular facts and circumstances of this case. Therefore, such decision- will be as follows:
Where a defendant is charged on information with committing murder in the first degree, and “the jury find the defendant guilty in manner and form as charged in the information,” without otherwise stating the degree of the offense of which they find him guilty, and no motion for a new trial is made, and the court sentences him as for murder in the first degree, and the record of the case does not show that he was informed by the court of the verdict of the jury, and asked whether he had any legal cause to show why judgment should not be pronounced against him, it will be held by the supreme court that the judgment of the court below must be set aside, and the cause remanded with the order that the defendant be again taken before the court below for sentence and judgment, and for such other, and further proceedings as may be properly had in the case; and that before sentence or judgment shall be again pronounced against him, *660he shall “be informed by the court of the verdict of the jury,, and asked whether he have any legal cause to show why judgment should not be pronounced against him.” (Comp. Laws 1879, p. 761, §248.)
The effect of this decision we think will be, that the defendant will obtain a new trial in the court below. The judgment of the district court will be reversed as above indicated, and the defendant will be returned from the penitentiary and delivered over to the jailer of Allen county, there to abide the further order of that court.