People v. Nichol

Instructions.—Where, on the trial of a defendant under an indictment charging him with murder in the second degree, the Court refused certain instructions, asked by the defendant, to the effect that he could not, under said indictment, be found guilty of murder in the first degree, and the jury returned a verdict of guilty of murder in the second degree : held, that the defendant was not prejudiced by such refusal; and this, whether the refusal was error or not.

Indictment for Murder—Province of Grand Jury.—It is no part of the province of the Grand Jury to determine the degree of murder, and a declaration thereof by their indictment will be disregarded.

Degree of Murder—Duty of Trial Jury.—The duty of determining the degree of murder is, by the statute, cast on the trial jury; and where the indictment charged murder in the second degree, only, they might, nevertheless, according to the nature of the proofs, find the defendant guilty of murder in the first or second degree.

Instructions.—On the trial of a defendant for murder, it was not error for the Court to refuse instructions, asked by defendant, founded on the idea that the question as to the degree of murder of which he could be convicted was not before the jury.

Test of Sufficiency of Indictment.—An indictment for murder will be deemed sufficient if it can be readily understood therefrom that, under such circumstances as show a felonious intent, a mortal wound was inflicted by the defendant upon the deceased—a human being—of which wound he died within a year and a day from its infliction.

Test to distinguish between Murder in First and Second Degrees.—Where the killing of a human being is intentional, deliberate, and premeditated, it is murder in the first degree; and if not, then it is murder in the second degree.

Idem.—By the statute two classes of murder are declared to be in the first degree, to wit: 1st. When effected by means of poison, lying in wait, or torture ; and, 2d. Where the killing is done in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary; in which cases the means employed or the circumstances attending the killing, as the case may be, are, by the mandate of the law, made conclusive of the degree of the crime, and the trial jury are without discretion, except in determining said facts. In all other cases of murder the jury must determine the degree from the circumstances of the killing, when the test is : if it be done intentionally, deliberately, and premeditatively, it is in the first degree ; otherwise, in the second degree.

Idem—Time a*d Degree of Deliberation.—To constitute murder in the first degree, it is only necessary that the act of killing be preceded by and the result of a concurrence of will, deliberation, and premeditation on the part of the slayer. There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind.