The plaintiff in error urges three several grounds of error on which he claims a reversal of the conviction : (1) “ The court erred in trying the defendant for murdеr in the first degree, when the information filed, and upon which the defendant was arraigned, charged the offense of murder in the second degree only; ” (2) “ the court erred in refusing to impanel the jury according to law;” and (3) “ the verdict is contrary to the evidence.”
1. The first ground of error is not happily statеd. It is of little interest now upon what theory the plaintiff in error was tried, if his conviction of murder in the second degree was produced fairly and without the intervention of error. The purpose of the trial was to ascertain if the plaintiff in error was guilty of the homicide, and to determine the degree of his guilt. It involved the investigation of all the circumstances of the crime. The degree of guilt could be known only as the result of the trial. The form of the trial must bе the same, whatever the degree of guilt. "What was intended by this specification of error is, probably, only that the court erred in that part of its charge wherein the jury were advised to find the defendant guilty of murder in the first degree if they should find from the evidence that the homicide was committed from premеditated design to effect the death of the person killed. This, of course, is error unless the information did charge murder in the first degree,;
That an information in this form does charge the offense of murder in the first degree is not an open question in this state, howеver it might be at common law and in the absence of a statute regulating the matter of criminal pleadings. The statute (E. S. sec. 4660) declares that an information in the form used shall be sufficient to charge the crime of murder. It has been held by this court, in repeated decisions, that it is competent under an information in that form to convict of murder in the first degree. Rowan v. State,
■2. It is not important to inquire or determine whether the jurors were prоperly selected, and duly produced in court by proper process; for the defendant withdrew his objections, and waived any irregularity which may have existed in that respect. It seems to have been thought by both counsel and court that such errors could not be waived. It must have been on this theory that the court excused a juror, over the defendant’s objection, on motion of the district attorney, on the ground that it was doubtful if he was unnaturalized, and for that reason incompetent. But this is an entire misapprehension of the defendant’s right in that regard. He can waive many provisions of the law whiсh are intended for his benefit. This he can do either by express consent, or by
3. The third аssigned error is that the verdict is contrary to the evidence; This is predicated on the .premise that the evidence shows that the killing was from premeditated design to effect the death of Sullivan, and so was necessarily murder in the first degree. If murder in the first- degree, it cannot be murder in the second degree. The conclusion is 'irresistible if it can be deemed that the evidence conclusively establishes the premeditated design. That is the point of the question. If the evidence left it fairly in doubt, then it was a question for the jury, and its verdict is conclusive upon it. The circumstances of the homicide, as shown by the evidence, do not so certainly indicate premeditated design as that it would not still be possible fairly to question its existence in the mind of the plaintiff in error. It seems that the evidence in that respect would support either of two propositions,— either that the homicide was promptеd by a premeditated design to effect the death of Sullivan, or that it was the reckless act of an angry man, evincing a depraved mind, regardless of human life, yet not prompted by that settled purpose to effect the death which constitutes the premeditated design
Clifford v. State, supra, is strongly urged as a case very much in point to sustain the contention of the plaintiff in •error. But Clifford v. State is not at all in point on th9 question herein. That was a case of conviction of murder in the first degree, and the only question was whether the evidence sustained the cоnviction. The plaintiff in error ■argues from some things which are said in the opinion that the court would not, on that evidence, have sustained a conviction of murder in the second degree. But it is vain to speculate on what the judgment would have been if the question had been different. But the case of Hogan v. State,
By the Court.— The judgment of the circuit court is affirmed.