, 1858-01-08
NO. T..

clude against the form Of the statute"
When the legislature abolish an offence
} which at the common law was felony, or
; reduce it to the grade Of a misdemeanor
only, the case Of an unlawful killing by
, person engaged in the act which was be-
fore felony, will no longer be considered
to be murder, bnt manslaughter merely"
Such changes in the law of murder have
often occurred both in this country and in
England, yet it never has before been
f thought nscsssary to change HE common law
form Of the indictment 10 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 peTpetrating at the time
the homicide was committed.-[The same
page, l75.
The Chancellor therefore arrives at the
conclusion that common law indictment
for murder is proper under the provisions
of the revised statutes of New York, and
that defendant cannot be convicted on
such an indictment of felonious homicide
with malice aforethought unless the evil
dence is such as to bring the case within
the statutory definition Of murder-TPage
l76.
The indictment in the case Of Enoch
contained three counts substantially alike,
except that in the first the offence was
charged to be contrary to the form Of the
statute.
The indictment was predicatsd upon the
revised statute Of New York which provi-
ded that the homicide should be murder.
lst. When perpetrated from a premedi-
tated design to effect the death Of the per-
son killed, or Of any human being.
g. When perpetrated by any other act
imminently dangerous 10 others, and eVinc.
ing depraved mind regardless Of human
life, although without any premeditated
design to effect the death Of any particular
individual.
g. When perpetrated without any design
to effect death by person engaged in the
commission Of any feloDy.-R s. N. York,
$50, sec. 5. aa'
In the Indictment in this case the form is
the same as in the case now under consider
alton, except in the number Of the courts.
The offence was charged in the common
law form to have been committed felonious-
l ly, wilfully and Of malice aforethought, in
stead Of charging Il to have been pefpetfa,
ted from "premeditated design to eject
the death Of the person Killed. which are
the words Of the statute, and was held to
be good Indictment, after being subjected
to the ordeal Of two courts Of review.
Pennsylvania, in 1874, passed an act ma
terialiy modifying the rules Of the common
law In reference to felonies. However. as
in this act among other qualification il is
provided that eaIl kinds Of Wilful, deliberate
and premeditated killing shall Be murder IN
the first degree, as also all killing committed
in the preparation, or attempt topegpetrate
any arson, rape, robbing or burglary, and
that the Jury trying the case shall. II they
find such person guilty thereof. ascertain n
their verdict whether C be murder Of the
first or second degree. Nc Kinney Digest,
p. s. 658 iaR. g 1s it lei
In Virginia there is also statute which,
after providing for murder perpetrated by
means Of poison, adds, or by ANY 9TH
er kind Of wilful, deliberate and premedi
tated killing and then follows the Pennsyl
vania statute gaaia4 laaia "a
1t has been held under the Pennsylvania
statute that It is not necessary that the in
dictment should describe the offence so as
to shew whether il be murder Of the frst
or second degTee.-- White vs.. Comp 6
Bin. lT0. gse se trE ra
Nor is it necessary 10 describe It as 1Wil-
ful deliberate and pFemeditated,D as ex-
pressed in the act Of assembly.--rC Com VI
Joyce ct al, cited in Bin, lS3. l1ss
Nor Is it necessary to set forth that IL
was perpetrated in the actual or attempted
arson, rape, burglary o. ro6Dery.--lcom
vs.. Flanagan, ! ". q :. 40.
IN virginia lt Is not necessary that tns
Indictment should enarge the onence as
murder IN the hrss oegree'--l lMieks VS.
Oom- VIZ Laws, o.O. ta
nor Is II necessary 70 nse INA. ueAcrlp1on
winch, according 70 % Ine statute Is murder IN
1