CeocketI, J.,
delivered the opinion of the Court; Rhodes, C. J., Temple,!., and Wallace, J., concurring:
The defendant was indicted, jointly with one Anne Rob-binson, for the murder of Jabez Robinson, alleged to have been perpetrated by administering poison to him. The defendant was separately tried and convicted, and is under a sentence of death, pronounced by the Court; from which judgment he has appealed to this Court. On the trial, the jury rendered a verdict finding him “ guilty of, the crime charged in the indictment,1’ and recommended him to the mercy of the Court, but did not specify the degree of murder of which they found him guilty. The defendant moved an arrest of judgment, on the ground that the verdict was insufficient on account of its omission to specify the degree of murder. I think the objection was well taken, and that the Court should have set aside the verdict. Section 21 of of the Act concerning Crimes and Punishments expressly provides that “the jury before whom any person indicted *138for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree.” This provision is found in the same section, which defines the degrees of murder, and in which it is provided that murder caused by poison, torture, lying in wait, or any other kind of willful, deliberate and premeditated killing, shall be murder in the first degree. After defining the distinction between murder in the first and second degrees, the section proceeds to enact that in all prosecutions for murder, if the jury shall find the defendant guilty, the verdict shall specify the degree of murder. This injunction of the statute is not limited to any particular class of prosecutions for murder. On the contrary, it is made obligatory on all juries “before whom any person indicted for murder shall be tried.” It establishes a rule to which there is to be no exception, and the Courts have no authority to create an exception when the statute makes none.
We have no right to disregard a positive requirement of the statute, as it is not our province to make laws, but to expound them. I do not understand the Attorney-General to claim that Courts and juries may, in any prosecution for murder, disregard 'this provision, or that any verdict of guilty in a murder case will be valid unless it designates in some sufficient manner the degree of murder of which the def endantis guilty. But his argument is, that, when it appears from the indictment that the murder was perpetrated by means of poison — which necessarily implies deliberation and premeditation — it is not possible, from the nature of the case, that the accused could be lawfully convicted of murder in the second degree, which differs from murder in the first degree only in the particular that the former lacks the element of deliberation and premeditation, except in the case of murder committed in an attempt to commit rape and several other specified crimes, in which exceptional cases it is murder in the first degree, although it was committed without premeditation. He insists, therefore, that when the murder is charged to have been committed *139by means of poison, torture, or lying in wait, which necessarily imply deliberation, and when the verdict is that he is “ guilty of the crime charged in the indictment,” this is a sufficient designation by the verdict of the degree of murder, for the reason that under the indictment he could not lawfully be convicted of any other crime than murder in the first degree, and the verdict, therefore, imports, ex vi termini, that the jury finds him to be guilty of that crime. The provision of the statute is that “the .jury shall designate by their verdict whether it be murder of the first or second degree.” The word “ designate,” as here employed, does not imply that it will be sufficient for the jury to intimate or give some vague hint as to the degree of murder of which the defendant is found guilty; but it is equivalent to the words “express” or “declare,” and it was evidently intended that the jury should expressly state the degree of murder in the verdict so that nothing should be left to implication on that point. If it be sufficient for the verdict to “ designate” the degree of the crime only by reference to the indictment, it would be equally good in such a case simply to find the defendant “ guilty,” without any express reference to the indictment; for a verdict of “ guilty,” without other words, would, in such case, be held to mean that he was guilty as charged in the indictment. The addition of these words to the verdict would have no significance, and would add no force to it as a designation of the degree of the crime. The unavoidable result of this process of reasoning would be that in an indictment for murder, alleged to have been perpetrated by means of poison, torture, lying in wait, and all that class of premeditated murder, the jury need not “designate by their verdict whether it be murder of the first or second degree,” except by a simple verdict of guilty, which, coupled with the indictment, would “designate” the crime as murder in the first degree. But this construction would annul the very letter of the statute, which, as we have seen, requires the jury to “designate,” or in other words, to express or declare by their verdict the degree of the crime. However *140absurd it may, at the first blush, appear to be to require the jury to designate the degree of the crime, when it appears on the face of the indictment that the offense charged has but one degree, there are plausible and, perhaps, very sound reasons for this requirement. No jury can well be ignorant of the fact that a conviction for murder in the first degree will be followed by the death penalty; and it may well be that the verdict is required to specify, in such a case, the degree of the crime, in order that it may distinctly appear that, in rendering the verdict, the jury was fully aware of the magnitude of the penalty which was to follow, and that they had, therefore, bestowed upon the case the careful and solemn deliberation demanded in a cause involving the life of a human being. This suggestion appears to be entitled to some weight, from the fact that in this cause the jury recommended the defendant to the mercy of the Court, which they must have known would be a vain and superfluous proceeding if, by their verdict, they had convicted the accused of murder in the first degree; in which event it would not be in the power of the Court to extend any mercy to the defendant. This circumstance affords just ground for the belief that the jury may have misapprehended the legal effect of their verdict, and may not have found it, if they had supposed it was to convict the accused for murder in the first degree, and it was necessarily to be followed by a sentence of death. We allude to this recommendation of the jury, not as affording a ground for setting aside the verdict, but only as an illustrat/ion of the policy which may have dictated the provision which requires the verdict in all prosecutions for murder to specify the degree of the crime. But whatever may have been the reasons for this enactment, it is sufficient for the' Courts to know that the law is so written and it is their duty to enforce it. '
There is in this record no statement of the evidence produced at the trial, but we infer from the instructions of the Court to the jury, and from the briefs of counsel, that there was evidence tending to show that the defendant, if guilty at all, was not a principal in the crime but only an ac*141cessory before the fact. But be was indicted and tried as a • principal, and tbe Court instructed the jury in effect, tbat tbat be might be indicted, tried and convicted as a principal, even though it appeared be was only an accessory before tbe fact. This was error. We bad occasion in tbe case of People v. Trim, (39 Cal. 75" court="Cal." date_filed="1870-07-01" href="https://app.midpage.ai/document/people-v-trim-5437090?utm_source=webapp" opinion_id="5437090">39 Cal. 75,) to consider this question, and held tbat under our Criminal Practice Act, though an accessory before tbe fact is liable to tbe same punishment as tbe principal, be must be indicted and charged as an accessory, and not as a principal. We have seen no reason to question tbe soundness of this view of tbe law.
Judgment reversed, and cause remanded for a new trial.
Sprague, J., expressed no opinion.
CROCKETT, J.,
also delivered tbe following supplemental opinion, in which Temple, J., Wallace, J., and Khodes, C. <3., concurred;
In tbe opinion delivered in this case at tbe present term, and in tbe case of tbe People v. Trim, (39 Cal. 75" court="Cal." date_filed="1870-07-01" href="https://app.midpage.ai/document/people-v-trim-5437090?utm_source=webapp" opinion_id="5437090">39 Cal. 75,) we held tbat, though an accessory before tbe fact, under tbe statutes of this State, may be tried, convicted and punished as a principal, nevertheless tbe indictment against him must specify tbat be aided and abetted tbe crime, and must state in what particular manner be aided and abetted it; and tbat if tbe indictment charge tbat be in person perpetrated tbe crime, it will not be sustained by proof tbat be only aided and abetted it, or, in other words, was an accessory before tbe fact. Since these decisions were rendered, our attention has been specially called to Section 255 of tbe Criminal Practice Act, under tbe belief tbat it may have escaped our observation; and, in order to avoid all misapprehension in respect to an important point in practice, we deem it proper to say tbat we find nothing in tbat section inconsistent with tbe conclusion already announced. Tbe sole purpose of tbat section was to abolish all distinction,. in cases of felony, between an accessory before tbe fact and tbe principal in respect to tbe grade of *142the offence and its punishment. The accessory is to be indicted, tried and punished as a principal; nevertheless, the particular acts which establish that he aided and abetted the crime, and thus became, in law, a principal, must be stated in the indictment. When these facts are averred and proved, the law considers the accused to be a principal, and condemns him accordingly. But Section 237 of the Criminal Practice Act provides that the indictment shall contain “a statement of the acts constituting the offence,” and this important requirement would be wholly ignored if an indictment which alleges that the defendant in person committed the crime would be supported by proof that he only aided and abetted it.
It is a fundamental principle in criminal jurisprudence that the accused is entitled to be informed by the indictment of the particular acts which he is alleged to have committed, as constituting the offence; and if he, in fact, only aided and abetted the crime, the fact must be so stated in the indictment. He then comes to the trial with a knowledge of the acts which are imputed to him. But, on the opposite theory, the indictment would charge him with one act or series of .acts, and he might be convicted on proof of a wholly different act or series of acts. We can attribute no such unreasonable result to our legislation on this subject. We think the true rule on this subject is laid down in People v. Schwartz, (32 Cal. 160" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/people-v-schwartz-5436299?utm_source=webapp" opinion_id="5436299">32 Cal. 160.)
Sprague, J., expressed no opinion.