This writ of error is brought to reverse a judgment of the court of common pleas of Montgomery county, sen tencing Francis Dick to the punishment prescribed for murder in the first degree. The indictment on *whieh the plaintiff in [90 error'was convicted, charges him with the murder of a person of the name of Catherine Young, and contains three counts, each of which charges him with the crime of murder in the first degree, in the language of the statute.

The verdict of the jury is recorded in the following words :

“ That the defendant is guilty in manner and form, as he stands charged in said indictment.”

It is assigned for error, that the verdict does not ascertain the degree of the crime, as required by law.

The statute of Ohio provides: “ That in all trials for murder, the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession, in open court, the court shall proceed by examination of witnesses,, in open court, to determine the degree of the crime, and shall pronounce sentence accordingly.” Swan’s Rev. Stat. 275, sec. 39.

It is claimed, that, inasmuch as. the indictment charges the crime of murder in the first degree, and the verdict finds the defendant guilty in manner and form as he stands charged, the jury did, in substance and effect, ascertain in their verdict, the degree of the homicide.

The degree of the homicide is a fact, which the statute requires to be specially found. On an issue to a jury, it is requisite that the jury should ascertain or find this fact in their verdict; and in case of a plea of guilty, the court is required to determine this question of fact, from the examination of witnesses in open court.

In the determination of the question here involved, the reason of this statutory provision becomes important; and what is it ? According to the established rules of criminal pleading, the different grades of criminal homicide may be charged against a party in the same indictment; and to sustain a conviction for murder in tho *91, 92second, degree, or manslaughter, it is not necessary that either of those crimes should, bo specifically charged in the indictment; but 91] on the ^principle that the higher grade of the crime includes each lower degree, an indictment for murder in the first degree would sustain a conviction for murder in the second degree, or manslaughter. So that, in case of a general verdict of guilty,, without ascertaining the degree of the crime, under an indictment for murder in the first degree, there would exist uncertainty as to-the judgment which should be entered; for while the indictment charged the highest grade of the crime, the legal presumption of innocence, in the absence of proofs to the contrary, always operating, would require the judgment to be for the lowest degree of the crime for which it could be rendered under the indictment. With a view, therefore, to certainty in a proceeding so important, involving a question of life or death, this statutory enactment was provided, requiring the degree of the crime to be ascertained by a sisecial finding in the verdict, in case of an issue to a jury.

It is urged on behalf of the state, that as there is no distinction by way of grades or degrees in the crime of murder at common law, the criminal statute of this state creating the degrees in this crime, contemplated the use of the common-law form of indictment, and, therefore, provided for ascertaining the degree of the crime in the verdict of the jury; but that, where the indictment charges the crime not in the common-law form, but in the descriptive words of the degree of the crime contained in the statute, and the jury find the defendant guilty in manner and form as charged, the verdict does, in effect, ascertain the degree of the crime, and is a substantial compliance with the statute. This reasoning to sustain the judgment of the -court below, will not bear the test of examination : First, because it is manifest, that the statute could not have contemplated the use of the common-law indictment, inasmuch as there are no crimes at common law in this state, and the statutory definition or description of the crime of murder differs from that of the common law. Second, because,, although the distinction 92] of degrees in the crime of murder does not prevail at common law, yet the distinction ^between murder and manslaughter does exist, making two degrees of criminal homicide by the common law of England; and yet, this statutory provision requires that the verdict ascertain the degree of the homicide, when the defendant is guilty of manslaughter, as well as when guilty-of either *93.of the degrees of murder; and, third, because the. language of the statute is explicit, has no reference to the form of the charge in the indictment, and does not admit of qualification. “In all trials for murder,” the jury “ shall ascertain in their verdict,” the degree of the crime, etc. The degree of the crime is a fact to be found by the jury; and it must be so specified as to appear, with certainty, from the verdict, without reference to the form of the charge in the indictment. It would be unsafe to allow the jury to ascertain the degree of the crime by a reference to the form of the indictment, as they are not so familiar with the technical form in which the crime is sometimes charged in the indictment, as to distinguish easily the requisites of a charge of one degree of homicide from that of another.

The words, “in manner and form as he stands charged in said indictment,” which are used in the record of the verdict, are, in practice, a mere matter of form, and are generally added by the clerk in entering the verdict. The indictment in this case contained all the requisites of a charge of murder in the first degree, and yet, had the verdict been, guilty of murder in the second degree, in manner and form as he stands charged in the said indictment, it would have been a good verdict. So, too, if the verdict had been, guilty of manslaughter, with the addition of the same words. In a judicial proceeding of such vast consequence, both to the community and to the accused, it was not intended that this provision of the law designed to produce certainty, should be evaded by mere words of form. Even where the conviction is by “confession in open court,” however specific the indictment may be in charging the degree of the crime, and although the prisoner may, even on interrogation, confess his guilt in the form, or, even the degree in which he is charged, *yet the court is imperatively required to proceed, on the “ ex- [93 amination of witnesses in open court, to determine the degree of the crime,” etc. The prisoner is not allowed to determine the degree of the crime, by a confession with reference to the form and manner of the charge against him; but the degree must be found by the court, from the evidence, without regard to the form of the confession, or the mode in which the crime is charged in the indictment.

It is conceded by the attorney-general, on behalf of the state, that a simple verdict of “ guilty,” on an indictment for murder in the first degree, would be insufficient. I must confess myself unable to perceive any very material distinction between that and *94the verdict which was rendered in the court below, in this case. The indictment sets out the statutory description of the crime of murder in the first degree; and the issue, which the jury was sworn to try, was upon the charge in the indictment, in manner and form as therein set forth. So that the simple verdict of guilty is a finding under the indictment, according to the issue, and when inserted in the full record of the case, shows a substantial — indeed, an actual' — finding against the accused, in manner and form as he stands charged in the indictment. The addition, therefore, in the verdict of the words, “ in manner and form as he stands charged in said indictment,” are mere surplusage, and without any legal effect upon the verdict. And whether a verdict in a criminal cause be that of guilty or of not guilty, these woi'ds are usually added by the clerk in recording the verdict, as matter of form.

The true object of this statutory provision, therefore, must be apparent. As an indictment for murder in the first degree embraces each of the three degrees of criminal homicide, of either of which the accused may be convicted, and as the issue which the jury is sworn to try involves a charge of each of these three crimes, on a general verdict of guilty which does not ascertain the degree of the homicide, the court could render no valid judgment, not knowing, from the verdict, for what degree of crime the judg94] ment should be ^rendered. Hence, the statute has very properly provided that the degree of the crime shall be found from the evidence, and ascertained or specified in the verdict.

It is said that the statutory provision, above recited, is similar to a statute on the same subject in Pennsylvania, and that the decisions of the courts in that state sustain the judgment of the court below in this case. The tendency of the decisions referred to is to sustain the position that, where the indictment is so drawn as plainly to show that the murder was of the first or second degree, all that the jury need do would be to find the prisoner guilty in manner and form as he stands charged. White v. The Commonwealth, 6 Binney, 182; Respublica v. Searle, 2 Ib. 339; Commonwealth v. Earl, 1 Wharton, 525. But these decisions rest upon the ground that the statute of Pennsylvania does not define the crime of murder, but simply refers to it as a known offense existing at common law, and classifies it into different degrees, prescribing different punishments for the lower grades of the crime; so that the common-law form of indictment for murder was still sufficient, *95and in contemplation of the statute. The ground upon which these decisions were made does not exist in Ohio, and therefore they can have no application here.

A doctrine contrary to that which appears to have prevailed in Pennsylvania has been held in a number of the other states. In giving a construction to a similar statute on this subject, the Supreme Court of Connecticut, in the case of The State v. Dowd, 19 Conn. 388, said that, in all cases of murder, the degree of the criminality must be found as a matter of fact; and without an express finding of murder in the first degree, the court would not be authorized to inflict the punishment prescribed by law for that offense.

Under a similar statute in the state of Missouri, the Supreme Court of that state, in the case of McGee v. The State, held that, upon the trial of an indictment for murder in the first degree, a verdict that the jury find the prisoner “ guilty in manner and form as he stands charged in the indictment,” was insufficient. This [95 case is strictly in point against the judgment of the common pleas in the case before us. The same doctrine was laid down in the case of Davis v. The State, 10 Georgia, 101; and is strengthened by the adjudications in Tennessee, Kirby v. The State, 7 Yerger, 259 ; Mitchell v. The State, 8 Ib. 827; and McPherson v. The State, 9 Ib. 280.

The Supreme Court of Ohio, held on the circuit, in the case of The State v. Town, Wright, 75, that if the jury, in case of a tidal for murder, do not specify in their verdict whether they find the accused guilty of murder in the first or second degree, or manslaughter, the court will refuse to pass sentence, and award a new trial, even without a motion on the part of the defendant. And this, I believe, has been in accordance with the uniform practice in this state.

Not only, therefore, is the plain requirement of the statute, but also the weight of authority as well as the practice in this state against the correctness of the judgment under consideration in this case.

The judgment of the common pleas must be reversed, and the cause remanded for further proceedings.

dissenting. After the most careful investigation I am entirely satisfied the verdict of the jury was sufficient to *96warrant the judgment pronounced upon it. Differing in this from a majority of the court, 1 shall proceed to state briefly the considerations which have led my mind to this conclusion.

The plaintiff in error stood charged in all the counts of the indictment with the crime of murder in the first degree. He was charged with having taken the life of Catharine Young “ unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice.” To this accusation the jurj>- have responded that he “ is guilty in manner and form as he stands charged in the indictment.”

So says the record, and no one doubts that it imports absolute 96] verity. I am aware of no rule of construction applicable *to a verdict for ascertaining the intention of the jury that does not equally apply to every other part of the proceedings in the cause; or, indeed, to any other instrument of writing where the same degree of certainty is required. If there is none it seems to me evident, upon general principles, that this verdict is a clear, distinct, and unequivocal affirmation of the truth of every material allegation contained in the indictment. Just as clear and distinct as it would be if it contained a recital of them all, with a statement that each and all of them were found to be true. And all of them being found true, the crime could be nothing else than murder in the first degree, and the court would be fully authorized in .awarding the penalty, prescribed by law, to be visited upon those guilty of it.

Does the 39th section of the crimes act (Swan’s Rev. Stat. 275) require more than this to be done ? It provides “ that in trials for murder, the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter, and if such prisoner be convicted by confession in open court, the court shall proceed, by examination of witnesses in open court, to determine the degree of the crime, and pronounce sentence accordingly.” '

The object of the general assembly in enacting this section is very easy to be seen and comprehended. It was intended to require the jury, in every case of felonious homicide, to go beyond the fact of killing, and from-the facts and circumstance in evidence to determine the degree of atrocity with which it was done, and to which of the three sections of the statute, punishing homi*97cide with different degrees of severity, the case of the accused properly belongs. It is at once conceded that it must distinctly and clearly appear from the verdict that the jury has performed this important duty, upon which the life of the prisoner may depend, before the court is authorized to give judgment upon it; or, indeed, intelligently can award the punishment due to the crime. A faithful adherence to the spirit of this enactment is absolutely ^necessary to give practical effect to the humane policy of our [97 legislation in proportioning the penalty to the nature of the offense, instead of the undistinguished severity which followed conviction of murder at common law; and I am very far from intending to undervalue its importance, or to weaken its force in the least. But with this concession constantly in view, it is unquestionably true, that no prescribed form of expression is required to be used by the jury in communicating their finding to the court. It is enough, if, from the language used, it appears, without doubt or ambiguity, either from the facts found, or by a specific designation of the degree of crime, that the jury have discharged this part of their duty, and have intended to communicate the result of their deliberations upon the evidence.

When this is done, in either form, the degree of guilt is ascertained — made certain — in the verdict, and the court judicially knows what judgment to give, and what punishment ensues.

I have already stated, as my opinion, that this verdict does find and affirm the truth, with precision and certainty, of every material averment contained in the” indictment; and as the facts there charged, undeniably constitute murder in the first degree, I think the jury have sufficiently ascertained the plaintiff in error to be guilty of that crime.

But it is said the indictment also charged him with murder in the second degree and manslaughter — that he might have been found guilty of either of those crimes upon the trial; and it is hence inferred, that finding him guilty as he stands charged, still leaves it uncertain which of the crimes included in the indictment the jury intended to affirm he had committed. That he might have been found guilty of either of the lesser crimes, under this indictment, there is no doubt, but quite as little, I submit, that neither of them is the crime charged upon him in the indictment. That crime is murder in the first degree, and to commit it, except in the attempt to commit certain other crimes, or by administering poison, requires *98, 9998 not only an unlawful killing, but a killing purposely, *and of deliberate and premeditated malice. If deliberation and premeditation are wanting, the charge as made is not proved, but if the balance of the averments are proved, he is guilty, not of the crime with which he stands charged, but of a lesser crime included within it, and exactly covered by such averments. The crime charged consists of a specific number of indispensable elements, forming one indivisible whole. Without them all, it does not exist; and with them all, charged in the indictment, and found to be true “ in manner and form as charged,” I am wholly unable to see why they are not all as effectually made part of the verdict, by this reference to the indictment, as though they were all copied into it, and the truth of each distinctly affirmed: or how any one of them can be said to lack verification more than another — how the fact of killing can, with more propriety or certainty, be said to be found, than the equally indispensable fact, that it was done with deliberate and premeditated malice.

Yiewing the verdict in the light I have presented, I should have deemed it a fair compliance with the requisitions of the statute, unaided by any judicial construction heretofore placed upon it. But a glance at the history and origin of this legislation very much confirms me in the views I have expressed. Murder was first separated into degrees, in this state, upon the revision of the crimes act in 1815 (2 Chase Stat. 856), and at the same time the section under consideration was first introduced. Prior to that time, all murder was punished with death, and the several statutes defining "it substantially adopted the common-law definition of the crime.

The provisions of our act of 1815, which have been almost literally re-enacted ever since, were very plainly borrowed from the Pennsylvania’ statute of 1794, as will be seen by comparison of the two. That statute recites, “ That whereas the several offenses which are included under the general denomination of murder, differ so greatly in the degree of atrociousness, that it is unjust to involve them in the same punishment,” etc. It thus enacts: “ That murders 99] which shall be ^perpetrated by means of poison, or by lying in wait, or by any other kind of deliberate, willful and premeditated killing; or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree, and all other kinds of murder, shall be deemed murder of the second degree; and the jury before whom *100' any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their verdict, whether it be murder in the first or second degree ; but if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of crime, and to give sentence accordingly.” United States Criminal Law, by Lewis, 1848, p. 351.

This statute treats murder as a known and definite offense; it does not attempt to define it as a substantive offense created by this statute, but to separate its degrees of guilt.

The crime is still regarded as existing at common law, and indictments are usually framed according to the common-law forms, which necessarily cover both degrees, and they have been uniformly sustained by the courts of that state.

In this respect their statute differs from ours, which creates and defines the offense, and in accordance with settled rules, requires the indictment to follow the language of the statute. This difference shows a greater necessity for the provision requiring the degree of guilt to be ascertained by the verdict in that state than-this, since it would not otherwise ordinarily appear; but still, as the provisions are the same, they should undoubtedly receive the sanie.construction. The Pennsylvania statute came under review and was first construed by the Supreme Court of that state, in the case of White v. The Commonwealth, 6 Binn. 182. C. J. TilgGinan. says : “ This act does not define the crime of murder, but refers to. _ it as a known offense, nor so far as it concerns ‘murder in the first degree, does it alter the punishment, which was always death; all that it does is to define the different degrees of murder, which shall be ranked in different ^classes, and be subject to different [100 punishments. It has not been the practice since the passing of this law, to alter the form of the indictments for murder in any respect; and it plainly ajjpears by the act itself tlmt it was not supposed any alteration would be made. It seems taken for granted, that it would not- always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree by their verdict, or in a case of confession, the court are to ascertain it' by examination of witnesses. But if the indictments were so drawn, as plainly to show that the murder was of the first or second degree, all that'thejury need do, would be to find the prisoner guilty in manner and form as he stands indicted.’'

This construction has been since uniformly followed, as may be *101seen from the cases of Comm. v. Earl, 1 Whart. 525; Comm. v. Miller, Lewis Crim. Law, 401.

The case of White v. The Commonwealth was decided in 1813. Two years afterward, the general assembly of this state incorporated the statute substantially into our criminal code. Now, aside from the respect due to the opinion of so learned a court, it is not fair to assume that, when we adopted it, it was intended to mean here just what it had been authoritatively settled to mean in the code from which it was taken ? I think it is ; and when it is remembered that a large portion of the members of our legislative bodies, at that day, were natives of the State of Pennsylvania, and well acquainted with her legislation and judicial decisions, I think it may be regarded as a legislative sanction of the correctness of the construction it had there received.

I am, therefore, of opinion, both upon principle and authority, there is no error in the record, and the judgment should be affirmed.

concurring in the views expressed by Judge Ranney, also dissented.