The Territory vs. Bannigan.
principles of the common law, to those principles of natural reason and justice which are inherent in the case, and to the provisions of State and national Constitutions, the indictment for murder, where the state divides it into two degrees, should, if murder of the first degree is meant to be proved against the prisoner, contain those allegations which show the offense to be in this degree, * * * If murder in the second degree only is to be proved, then in all cases, an indictment for murder, drawn in any of the common law forms, will be adequate. Thus it is with the two degrees of felonious homicide which we now call murder and manslaughter." The only degrees known to our statute.
From these considerations we are clearly of the opinion, and so hold, that the indictment in this case is sufficient. We have no disposition nor wish to abandon the well trodden highways of judicial construction, along which, for so many cycles, have been heard the foot-falls of genius, for the obscure and intricate bridle paths, blazed out by a few bold and daring adventurers, who seem to be in search of scenery rather than safety, and who prefer the mists of speculation to the sunlight on the mountain tops of experience. Nor are we anxious to create for the opinions of this court a species of cheap notoriety, by arraying ourselves against the best legal thought of the past and present, in overturning principles and precedents, sanctioned alike by reason and common sense, and which have received the support and enlightened judgments Of the brightest and clearest intellects that have ever adorned the bench or guided the author's pen.
The mere love of novelty or the vain ambition to be considered original do not furnish a sufficient apology for departing from the well settled forms and principles of pleading and procedure in criminal cases, when such departure is not made necessary by some legislative enactment, or dictated by sound considerations effecting the better administration of justice.
Certainty and stability in the rules governing judicial proceedings should never be sacrificed to hypercritical nicety
