Fitzgerald v. People

The identical language which ‘ the legislature employed, in the Revised Statutes, to define the crime of murder was, with the exception of the change in the third subdivision which is not material to the present case, retained in the amendatory act of 1862, dividing this crime into two degrees, and now constitutes, with the same exception, the definition of murder in the first degree. Under the former statute, it has been repeatedly held that the form of an indictment, at common law, like that upon which the prisoner was tried and convicted, was good and sufficient to *127charge the statutory definition of the crime, i. e. that the premeditated design to effect the death of the person killed, which the statute, applicable to this case, makes an indispensable ingredient of the crime, is comprehended in the averment of a willful and felonious killing with malice aforethought. This has been the rule of law in this state for over thirty years. (People v. Enoch, 13 Wend. 159. People v. Clark, 3 Seld. 393.) We are not at liberty to change it. While it prevails, the crime charged in this indictment cannot legally be denominated murder in the second degree. That is defined to be a killing which is not murder in the first degree, or manslaughter, or excusable or justifiable homicide, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony. It is not necessary to decide what facts other than those last stated, would constitute murder in the second degree. It is enough, that this indictment sets forth the higher crime.

A general verdict is equivalent to a special verdict, finding all the facts which "are well pleaded in the indictment. (Arch. Pl. and Pr. 172, 3.)

The jury might have found a special verdict, showing the facts, and required the judgment of the court thereon, (2 B. 8. 421, § 68 ; Id. 735, § 14,) or, if the evidence warranted it, they might have found the prisoner not guilty of murder in . the first degree, but guilty of either murder in the second degree or of manslaughter. (2 R. S. 702, § 27. Dedieu v. The People, 22 N. Y. Rep. 178.)

Having found a general verdict upon an indictment charging the prisoner with having committed the crime of murder in the first degree, the court below were right in pronouncing the judgment upon the record. (Com. v. Gardner, 11 Gray, 438. White v. Com. 6 Binn. 179. Com. v. Flanagan, 7 Watts & Serg. 415. Johnson v. Com. 12 Harris, 586.)

There have been, apparently, conflicting decisions on this subject, in some of the western states, but they proceed on *128peculiar statutes, and ought not, therefore, to influence our determination.

The judgment should he affirmed.

Lott, J. F. Barnard and Gilbert, Justices.]