The Territory vs. Bannigan.
101.) The force of these authorities is not weakened, by the consideration that the specific definition of the degrees, is preceded by the general common law definition of the crime in the California statute. Our statute says "homicide is murder in the following cases." The question recurs, what is murder as here used ? Being a word defined by law, it must be construed according to its legal meaning. (§ 230. Crim. Proc.) Therefore supplying the definition, or all that is implied in the single word, and we have in general arrangement the California statute, without the division into degrees.
In the State of Pennsylvania, where murder in the first degree is defined to-be " by means of poison or lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, or by any other kind of willful, deliberate and premeditated killing," the indictment in common law form, charging the offense to have been committed with "malice aforethought," has always, "without variableness or shadow of turning," been held sufficient.
The contrary doctrine has been held by the supreme courts of Ohio (Fouts v. The State, 8 Ohio St. 98) and Iowa (The State v. McCormick, 27 Iowa 402,) and insisted upon in a few dissenting opinions. (Bacon, J. in Fitzgerrold v. The People, 37 N. Y. 685, and Dixon, C. J. in Hogan v. The State, 30 Wis. 442.)
Wharton, in his work on Criminal Law, Vol. 2, § 1115 says: "According to the great weight of authority, a common law indictment for murder is sufficient to support, under the statutes, murder either in the first or second degree," citing in support of the proposition a long array of authorities, not necessary here to refer to.
But it seems unnecessary to pursue the inquiry further. We have not been referred to one single authority, holding a common law indictment insufficient under a statute that leaves murder as at the common law undivided into degrees.
Bishop, who maintains the doctrine laid down in the cases of Fouts v. The State, and The State v. McCormick, supra, in his work on Criminal Procedure, (Vol. 2. § 586) uses the following language: "The result is, that, according alike to the
