(dissenting). —I concede that tbe weight of authority is with tbe majority of tbe court; but I cannot bring my judgment to a concurrence therewith, and hence I am compelled to dissent.

Tbe reasoning of tbe cases relied upon to sustain tbe position of tbe majority as to tbe sufficiency of tbe indictment seems to me to be overtecbnical and unsatisfactory to tbe common understanding. I agree with the majority tbat tbe specific intent to kill must appear, but, unlike them, I am of tbe opinion tbat it does appear in tbe indictment in question. I think tbat tbe reasoning of tbe minority of the court in tbe two Ohio cases, cited by Chief Justice Anders, is more satisfactory than that of tbe majority, and should be inclined to follow tbe same and bold this indictment good without tbe aid of our statute as to tbe sufficiency of indictments. And, when aided by such statute, it seems to me clear tbat tbe position taken by tbe majority of the court is untenable.

It is true that one section of our statute requires tbat tbe allegations of tbe indictment must be direct and certain; but this section must be interpreted in tbe light of tbe subsequent sections,which provide in substance tbat an indictment shall be sufficient if a man of common understanding *274can-determine therefrom with what he is charged. Interpreting these sections together, and I can give them all force only by holding that the legislature meant to state in said first section what a perfect indictment should contain, and how it should be stated; and that the subsequent sections were enacted for the purpose of preventing a person charged with crime from availing himself of a want of a technical compliance with said first section by the prosecution. In other words, the legislature has said every indictment ought to be direct and positive as to all its allegations, but if it is not, the defendant can take no advantage of such fact, provided certain things can be gathered therefrom by a man of common understanding.

If this construction of these sections of the statute is correct, the material inquiry in this ease is this: Can a man of common understanding see from the indictmentin question what crime is intended to be charged, together with certain other necessary allegations as to which no question is made? In my opinion there can be but one answer to this question, and that an affirmative one. Let any man of common understanding read the said indictment, and he cannot possibly fail to see that the prosecution intended to charge the defendant with murder in the first degree. And, if this is so, I think that under our statute the indictment is good as against the objections urged against it.

Not only do I think the indictment good, but even if it were bad, I do not think the defendant was in a position to avail himself of its insufficiency as a cause for reversal by this court. For while it is doubtless true that the objection, that the indictment does not state facts constituting the crime of which the defendant wasconvicted, can be raised for the first time in this court, yet in my opinion, it must be regularly raised by the assignment of errors in the case, or at least by the briefs of one or both of the parties to the appeal. In this case the sufficiency of the indictment is not attacked in the least degree, either in the assignment of errors or in the *275briefs, and was first suggested by the oral argument on the part of the plaintiff in error. To bold that sucb a question can thus be raised and made available by a defendant is to practically nullify the requirement of an assignment of errors, either in the brief or elsewhere, and throw open the doors to such a course of practice as will practically deprive this court of the benefit of an argument by the defendant in error as to the vital question upon which the case may turn in this court, and also in many cases as to the final determination of the cause.

I think that the judgment and sentence of the court below should be affirmed: First, because the indictment is sufficient; and second, because the error upon which the majority of the court founds the reversal was not properly before the. court for determination.

Tbe opinion of tbe court was delivered by

On tbe 16tb day of December, 1889, tbe appellant, Benjamin Blanton, killed one Tbomas 0. Click, in Whitman county, in this state, by shooting him with a pistol. Upon tbe plea of not guilty, and tbe defense of insanity, or delirium tremens, resulting from long continued use of intoxicating liquors, be was tried, convicted of murder in tbe first degree, and sentenced to be banged. Tbe defendant brings tbe cause to this court for review, and claims a reversal of tbe judgment of tbe court below for errors alleged to have been committed on tbe trial.

Although the indictment was not attacked in tbe trial court, either by motion to quash or by demurrer, or even by motion in arrest of judgment, it was insisted on tbe argument in this court, by appellant’s counsel, that it does not state facts sufficient to constitute murder either in tbe first or second degree, under our statute, and is insufficient to sustain tbe judgment of tbe superior court. And while it is to be regretted that tbe question was not raised at an earlier stage of tbe proceedings, and presented in the brief of counsel, still we are of tbe opinion that it is a matter *267which the defendant should not be deemed to have waived by his failure to urge it in the court below. The indictment, omitting the venue, is as follows:

‘ ‘ Benjamin Blanton is accused by the grand jury of the State of Washington, for the county of Whitman, by this indictment, of the crime of murder in the first degree, committed as follows: That he, the said Benjamin Blanton, on the 16th day of December, 1889, at the county of Whitman, in the State of Washington, in and upon the body of one Thomas C. Click, then and there being, feloniously, purposely, and of his deliberate and premeditated malice, did make an assault, and that he, the said Benjamin Blan-ton , with a certain revolving pistol, then and there charged with gunpowder and leaden bullets,- which said revolving pistol he, the said Benjamin Blanton, then and there had and held, and then and there feloniously, purposely, and of his deliberate and premeditated malice, did discharge and shoot off, to, at, against and upon, the said Thomas C. Click, and that the said Benjamin Blanton, with one of the leaden bullets aforesaid, out of the revolving pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Benjamin Blanton discharged and shot off as aforesaid, then and there feloniously, purposely, and of his deliberate and premeditated malice, did strike, penetrate and wound him, the said Thomas C. Click,in and upon the body of him, the said Thomas C. Click, giving to him, the said Thomas C. Click, one mortal wound, of which said mortal wound he, the said Thomas C. Click, then and there instantly did die; and so the grand jury aforesaid do say that the said Benjamin Blanton, him, the said Thomas C. Click, in the manner and by the means aforesaid, feloniously, purposely and of his deliberate and premeditated malice, did kill and murder, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Washington. Dated at Colfax, in said county of Whitman, the 19th day of December, A. D. 1889.”

• At common law murder was defined as the unlawful killing of a human being under the king’s peace, with malice prepense or aforethought, either express or implied by law. Buss. Crimes, 482; 4 Black. Com. 198. And there was no classification of crime into degrees, but all malicious *268homicides were of the same grade and subject to the same penalty. It being manifestly unjust to punish him who kills another with only that degree of malice which is implied by law, with the same severity as him who deliberately and premeditatediy takes the life of a fellow-being, the legislature of several of our states have changed the common law relating to murder, not only by dividing it into distinct degrees, but by specifically defining its grades and prescribing corresponding penalties. Our statute defines murder in the first degree as follows: “Every person who shall purposely, and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death. Code Wash. T., §786. And “every person who shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree.” Code, § 790. Murder, therefore, with us, is now a purely statutory, and not a common-law, crime, and must be so considered by the courts. And in order to constitute murder in either degree, it is necessary that there must have been a specific intent or purpose to kill. Under our statute this is evident. But the difficulty, in given cases, is to determine whether or not this intent has been sufficiently expressed in the indictment.

And the question now before us is, has this been done in the indictment now under consideration? It is insisted that the indictment nowhere charges that the defendant purposely and of his deliberate and premeditated malice killed the deceased, and that without such a direct and positive allegation, it is fatally defective. The objection is well taken, and must be sustained. The indictment does allege that the defendant did, purposely and of his deliberate and pre*269meditated malice, assault tbe deceased, and that be, purposely and of bis deliberate and premeditated malice, fired tbe fatal shot; but it does not allege that it was thus fired with tbe intent to kill, or that tbe killing was thus done. All of tbe averments of tbis indictment may be true and yet tbe defendant may not be guilty of murder.

But it has been suggested that tbe concluding part of tbe indictment, beginning with tbe words “and so,” does contain all the averments necessary to make it conform to tbe requirements of tbe statute. But is tbis a concise statement of a fact descriptive of tbe crime, or is it a mere conclusion of law drawn from antecedent averments of facts ? The' adverb “ so ” is defined by Webster as meaning “ in tbe same manner; as bas been stated; in tbis or that condition or state; under these circumstances; in tbis way; with reflex reference to something just asserted.” Tbis is tbe ordinary way tbe word is understood, and it must be taken to mean the same thing when used in an indictment.

Under our statute an indictment must be direct and certain as to tbe party charged, tbe crime charged, and tbe circumstances of tbe crime, when necessary to constitute a complete crime, and tbe act or omission charged as tbe crime must be clearly and distinctly stated in plain and concise language, so that a person of ordinary understanding may know what is intended; and conclusions of law need not be stated. At common law tbe indictment would be good, as it was not necessary to allege a purpose or design to bill in an indictment for murder; and the concluding part was deemed only a conclusion of law without which an indictment, as such, would be sufficient. Rex v. Nicholas, 32 Eng. C. L. 620; Fouts v. State, 8 Ohio St. 98, and authorities cited.

If tbis were a new question, and presented for tbe first time; if pleaders and courts were not familiar with_tbe form in which tbis indictment is drawn, and accustomed to look upon it as tbe established and long-sanctioned prec e-*270dent of an indictment, would we hesitate to say that it does not consist with the essential requirements of our statutes? We think not. And as we have no common-law crime of murder in this state, we are constrained to look solely to our statute for the definition of the crime. And it will not do for the grand jury to charge an assault or a shooting in the language of the statute, and then conclude that “ so” the deceased was killed. The following cases are in point. See Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 306; State v. McCormick, 27 Iowa, 402; Schaffer v. State, 22 Neb. 557; 3 Am. St. Rep. 274; Leonard v. Territory, 2 Wash. T. 381.

In the case of Leonard v. Territory, supra, the indictment was identical in its language with the one now before us. And our late territorial supreme court held it insufficient to charge murder in the first degree, for the reason that it failed to allege that the killing therein described was done purposely and of deliberate and premeditated malice. And the majority of the court are satisfied both with the reasoning and the conclusion reached in the opinion of the learned judge in that case. But while we are constrained to hold that the indictment in this case is insufficient to sustain a conviction of murder in either the first or second degree, we are clearly of the opinion that it sufficiently charges manslaughter, and is therefore valid to that extent.

Turning from the indictment, we will now direct our attention to the errors alleged to have been committed on the trial of the cause in the court below.

The first assignment is, that the court erred in overruling defendant’s motion to set aside the indictment, for the alleged reason that the grand jury which found the indictment was ordered, summoned, empanneled and sworn without authority of law. A grand j ury had been summoned for the regular term of the district court of the territory, and has been discharged by the court on the 6th day of *271the session. Afterwards the defendant, while the court was in session and without a grand jury, committed the crime with which he is charged. The court ordered the grand jury to be re-summoned to inquire into the matter. The defendant was then in the custody of an officer, upon complaint duly made, was present when the grand jury was empanneled, and though given an opportunity to challenge either the entire panel or the individual jurors, declined so to do, but afterwards interposed a motion to set aside the indictment for the reasons above stated. The court very properly overruled the motion. After waiving his right to object to the jury the defendant had no right to raise the objection by motion to quash the indictment. Besides, the statute provides that no motion to set aside the indictment on the ground specified shall be allowed to a defendant held to answer before indictment. Code Wash. T., 11047. The defendant was in substantially the position contemplated by that section of the code, and he cannot be heard to urge any objections to the grand jury.

It is nest urged that the court erred in ordering a venire for thirty-six additional trial jurors before the regular panel of twenty-three jurors was exhausted. But the record shows that none of the additional jurors or tales-men were drawn as trial jurors until the original panel was entirely exhausted. This at most was but an irregularity, and we fail to see any error therein that could have been prejudicial to the defendant.

On the third day of the trial defendant moved for a continuance on the ground of newly discovered evidence. The motion was overruled and exception taken and error assigned. The affidavit was insufficient, and we cannot say the court abused its discretion in denying the motion.

Objection is also made to the refusal of the court to exclude from the jury the evidence of one Mattock as to the shooting of Bennettand Doble, on the ground of irrelevancy. The facts disclosed by the record are these: At the time of *272tbe commission of tbe homicide, Click tbe deceased, and Bennett and Doble, were walking together on tbe sidewalk, in Colfax. As they were passing by the defendant, he suddenly drew a revolver from bis pocket and shot Click, and almost immediately turned and fired at tbe other two persons, Bennett and Doble. Mattock testified to these facts, and his evidence was objected to as irrelevant, and as tending to show the commission, by defendant, of other distinct crimes. The testimony was properly admitted. It was a part of what the defendant did at the time — a part of his acts. All the res gestae may be shown, though the transaction is a continuing one. 1 Bish. Crim. Proc. (3d ed.), I 1125.

During the trial one John Tobin was called as a witness for defendant. After stating to the court and jury how the defendant acted and talked, especially on the day of the homicide, he was asked by defendant’s counsel to “ state whether or not he talked like a sane or an insane man during the night.” The question was objected to by the prosecution, and the objection sustained, and the ruling of the court duly excepted to and assigned for error. The question might have been permitted withou t prejudice to the state; and, on the other hand, we fail to perceive wherein the defendant could have been, in any degree, injured or prejudiced by its exclusion. It is true that expert witnesses may give their opinions as to tbe insanity of an individual, after having first testified as to his actions, declarations, general demeanor and peculiarities; but we fail to see that this rule was violated in this particular instance.

It is further claimed that the court unduly abridged the right of the defendant to testify in his own behalf, but we think the objection is not well taken.

The defendant also assigns several errors which he alleges were committed by the court in charging the jury, as well as in refusing to charge as requested by his counsel. We have carefully examined the instructions and have come to *273tbe conclusion that tbe law, as applicable to tbe facts of tbe case, was fully and fairly given to tbe jury, and tbat tbe defendant could not have been prejudiced by tbe refusal of tbe court to instruct as requested..

Holding, as we do, tbat tbe indictment sufficiently charges manslaughter, tbe cause must be remanded to tbe court below, with instructions to set aside tbe judgment heretofore entered, and to pass sentence upon tbe defendant for manslaughter, upon tbe verdict of guilty, and it is so ordered.