The Territory vs. Bannigan.
second and third subdivisions in cases of implied malice; and this is in general the line of distinction drawn and observed by the statutes which divide murder into two degrees. Murder under our statute not being divided into degrees, and our statutory definition including in the different subdivisions both express and implied malice, and malice aforethought, as it has for so long time been construed and come to be understood, embracing both, they are' the most apt and appropriate words to be used by the pleader in charging the crime. If the indictment charge, in the language of the first subdivision, the homicide to have been perpetrated with a premeditated design to effect death, the premeditated design, or express malice, must be proved. (The People v. White, 24 Wend. 520.) And from this it would seem to follow, that in such a case the defendant could not be convicted on evidence of implied malice, though coming clearly within the provisions of the second or third subdivision.
It is true that at common law malice aforethought had a broader signification than it will bear when applied to murder as defined by our statute. Formerly the prisoner might have been convicted upon proof of implied malice, which, under our statute would only amount to manslaughter, where for instance the accused, while engaged in an unlawful act under the degree of felony, killed another against his intention. But this cannot prejudice or jeopardize the rights of the accused, for, in the language of Judge Nelson in the opinion above referred to, "it is the business and duty of the court to see that a proper direction be given to the jury, in point of law, upon the evidence, and if either court or jury err, the appropriate remedy must be sought."
In the case of The People v. Enoch, supra, the chancellor uses this language: "From this examination of the subject, I have arrived at the conclusion that a common law indictment for murder is proper under the provisions of the Revised Statutes, and a defendant cannot be convicted on such an indictment, of a felonious homicide with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder." And in the case of
