The Territory vs. Bannigan.
der seeks to bring the prisoner within the enhanced punishment, or where new ingredients have been added either limiting or enlarging the original constituent elements of the crime. But admitting the strictest construction of the rule, our statute provides that the " words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used," (§ 221, Crim. Proc.)
Homicide, as we have seen, was at common law, murder when perpetrated with malice aforethought, express or implied. Express malice has no uncertain legal meaning, and is defined when used with reference to homicide, to be "when one with a sedate, deliberate mind, and formed purpose, doth kill another." The legislature of this Territory sought to popularize, so to speak, legal phraseology in framing the provisions of our Penal Code, and to make them plain to the common understanding of the citizen, who is presumed to know their meaning. And with this purpose in view, in drafting the first subdivision of the section referred to, instead of the phrase "with malice aforethought" or "express malice," the language of the best definition of these phrases, conveying their meaning and import is employed: "with a premeditated design to effect the death, &c." But this change in phraseology was deemed necessary from another consideration, which is forcibly stated by Judge Nelson in the case of The People v. Enoch, 13 Wend. 159, a case that arose under a statute of which ours is an exact copy. (2 R. S. New York, 657, § 5.) That learned judge uses this language: "Malice aforethought in common parlance, and as originally used, conveyed only the idea of express malice. Its meaning had been enlarged so as to include implied malice, by judicial construction, to define and limit which, was the object and has been the only effect of the fifth section above referred to." Under this judicial construction, malice aforethought, had been made to include both express and implied malice, and would be applicable to the definition of murder as set forth in all three of the subdivisions of section 242 Penal Code; but the first subdivision was, as declared by the supreme court of New York, intended to define murder in case of express malice, and the
