MILLER, J. (dissenting).

The appeals, in the cases now before us, present for our consideration, the constitutional validity of the act of the legislature creating a metropolitan sanitary district and board of health, and of several provisions of said act and of the act amending the same passed in 1866. (Sess. Laws of 1866, chaps. 74, 686.) Each of the cases involve questions of grave moment and of paramount importance to the public, and should be examined and considered with calm deliberation, and with a proper appreciation of the interests involved.

It is claimed that so far as the acts of the legislature organizing the metropolitan board of health confers power to legislate, they conflict with the Constitution and are void. At the time when the Constitution of 1846 was adopted, the several boards of health in the cities and villages of this State were vested with authority, and it was made their duty "to make regulations in their discretion concerning * * the suppression and removal of nuisances, and all such other regulations as they shall think necessary and proper for the preservation of the public health." (1 R.S. [2d ed.] 445, § 27.) This law was in force at the time when the Constitution went into operation, and in pursuance of the powers thus conferred upon them, a code of ordinances had been passed by the board of health of the city of New York, which consisted of the mayor and common council of that city (Sess. Laws of 1823, ch. 71; id. of 1850, ch. 275; 1 R.S. [5th ed.] part 1, ch. 14), which were in operation when the new board of health was organized. By the acts organizing the new board, which are now submitted to our consideration, they succeeded to the powers vested in the local authorities. By the twentieth section (Sess. Laws of 1866, ch. 686), the power to make rules and regulations was conferred upon them, and they were vested with extensive legislative powers, entirely local in their character. They possess the power to create offenses, and to enforce the ordinances made by them by a penalty not exceeding fifty dollars for each offense. By section thirty (Sess. Laws of 1866, ch. 74), it is declared that "whoever shall violate any of the provisions of this act, or any order of said board, made under the authority of the same, or any by-law or ordinance therein referred to, or shall obstruct or interfere with any person in the execution of any order of said board," etc., "or willfully omit to obey any such order, shall be guilty of a misdemeanor, and be liable to be indicted and punished for such offense." It also provides that "any person, corporation or body which may have willfully done or omitted any act or thing which is in this act, or any law or ordinance therein referred to, declared to be, or to subject the party guilty thereof to punishment for a misdemeanor, shall, in addition thereto, be subject to a penalty of $250."

In pursuance of the provisions of the twentieth section, above cited, a large number of rules, regulations and ordinances have been passed, embracing a variety of subjects relating to the preservation of the public health.

At the time when the Constitution went into effect, and prior to the passage of the act in question, the boards of health, in their several localities, were the only bodies who enjoyed the power of local legislation in regard to the public health. They had extensive and almost unlimited powers upon this subject (1 R.S. [2d ed.] ch. 14); and severe penalties were imposed for a violation of any regulation made by them. (Id. p. 446, § 28; Laws of 1832, ch. 333.) As we have seen, the Constitution recognized the validity of these laws, and the legislature had full power and authority to restrict these powers; but they had no right to confer them upon other and different bodies, holding their offices by State authority, and not elected by the people or appointed by the local authorities within the limits of whose jurisdiction they were authorized to exercise their functions, within the provisions of section second of the tenth article of the Constitution.

By the first section of the third article of the Constitution, the legislative power is vested in the senate and assembly; and thus the legislature were authorized to enact and to repeal laws in reference to the public health, without any restriction or limitation whatever. But while the legislature can confer power, in a restricted sense, upon public bodies which the Constitution recognized at the time of its adoption, as authorized to receive such power, there is nothing in that instrument which sanctions a transfer of such power to public officers or to any body who hold their offices by virtue of appointment from the governor and senate. It cannot take away legislative authority, delegated to localities, and confer it upon officers created by virtue of its own enactments. The common councils of cities, the trustees of villages, and the electors of towns when assembled in town-meeting, possessed and enjoyed certain powers and privileges in this respect, when the Constitution took effect. These may be changed, modified or repealed; but they cannot be transferred to bodies or persons not recognized by the Constitution. The Constitution confers certain legislative powers on local organizations. By article eight, section nine, it provides for the organization of cities and villages. By article three, section seventeen, it authorizes the legislature to confer upon boards of supervisors certain powers of local legislation. Considering the laws as they existed when the Constitution was adopted, conferring local legislation upon boards of health, that instrument must be regarded as recognizing the powers thus conferred; and the absence of power to confer such authority upon new officers must, I think, be considered as a prohibition to go beyond this. As already stated, there were certain powers existing when the Constitution took effect, and certain other powers conferred directly by the Constitution. It would, therefore, seem to follow, by implication, that the legislature was prohibited from granting powers of local legislation to any bodies which were not thus recognized. In The People v. Draper ( 15 N.Y. 532) Judge DENIO, in discussing the question of power conferred by the Constitution, says that "every positive direction contains an implication against every thing contrary to it, or which would frustrate or disappoint the purpose of the provision. The frame of the government; the grant of legislative power itself; the organization of executive authority; the erection of the principal courts of justice; create implied limitations upon the law-making authority, as strong as though a negative was expressed in each instance. But, independently of these restraints, express or implied, every subject within the scope of civil government is liable to be dealt with by the legislature."

The provisions of the Constitution defining legislative powers are evidently intended as restraints upon the authority of the legislature, and to prevent the exercise of such powers by conferring it upon officers neither elected by the people or appointed by the local authorities affected. Clarke v. The City of Rochester ( 28 N.Y. 606) holds that the legislature cannot commit the power of enacting laws to any other body than itself, not even to the electors of the State. The learned judge who wrote the opinion, says: "While general statutes must be enacted by the legislature, it is plain the power to make local regulations having the force of law in limited localities, may be committed to other bodies, representing the people in their local divisions, or to the people of those districts themselves." It is then only to local boards or councils in cities, in villages, and to authorities recognized by the Constitution that this power can be committed. No such authority is sanctioned as to any board of officers independent of these provisions, and it would be in direct conflict with the Constitution so to hold. For if such power can be transferred and granted to a board of officers of any kind, then there is no limit to legislative power, and it might upon the same principle, if not with the same propriety, be conferred upon a single individual, which could never have been intended. The same doctrine is fully indorsed and sustained in The People v. Acton (48 Barb. 533). This case involved the constitutionality of the twelfth section of an act of the legislature passed in 1867, which invested the board of metropolitan police with all the powers and duties conferred by law upon the mayor and common council and all other boards and officers of the city of New York (except the metropolitan board of health) in respect to the licensing of theaters, places of amusement, etc., and authorized such board to alter, amend, modify or repeal all ordinances in force at the time of the passage of the act concerning the persons and matters mentioned in said section. It was held in this case that the legislature cannot confer the power to discharge duties and make regulations to pass laws relating thereto upon State officers, no matter how appointed, whether by the governor and senate or the legislature. This case is directly in point, and the judgment of the General Term therein was affirmed upon appeal to this court. The opinion has not been published or furnished, and, therefore, we have no means of knowing the precise grounds taken, although it is fair to assume that the court concurred with the grounds taken in the Supreme Court.

It is said, in reference to the case of The People v. Acton, that, so far as it is applicable to the cases before us, it was decided upon the ground that the new power taken from the local officers of New York city was conferred on the police board, to be solely exercised by the latter in said city. I do not so understand that decision. INGRAHAM, J., in his opinion in that case, says: "The Constitution provides that the legislature may confer upon the board of supervisors powers of local legislation. The granting of such a power to the legislature naturally involves the supposition that they could not otherwise give such a power. If they could not give any such power to boards of supervisors without a constitutional provision, I am at a loss to see any authority to bestow such a power on a board created by themselves, and not a recognized body in the Constitution. The powers given them are to legislate in regard to local matters." He cites Barto v. Himrod (4 Seld. 483) as an authority for the principle that laws could only be enacted by the legislative bodies to which the legislative power is committed by the Constitution; and remarks: "I see no good reason why the legislature should be allowed to commit to the board of police the power to legislate, when they could not even submit to the people the question whether they would approve of a law." If the legislature could not delegate such a power to the board of police, how could it be done to any other board of officers similarly constituted and organized? It will be perceived that the learned judge does not place his opinion upon the ground that the powers conferred are to be solely exercised within the city, but upon the broad ground that legislative powers cannot be conferred upon a board created by the legislature itself, which had no existence when the Constitution was adopted, and which the Constitution did not recognize. Nor do I understand that the opinion of Justice SMITH sustains any such doctrine as is claimed. But, even conceding that there may be some force in the suggestion made as to the effect of that decision, can it, in any way, aid in sustaining the constitutionality of the law in question? The order of the board of health, for a violation of which a penalty is claimed, was entirely local. The ordinance claimed to have been violated, so far as it is in controversy here, was local in its operation, and related to the city of New York; and the injunctions sought have reference to the local action of the board of health as to New York city alone. Here, then, is the exercise of legislation, entirely local in its character.

The result of the examination I have bestowed upon the question discussed, brings my mind to the inevitable conclusion that the provisions of the act to which I have adverted, confer legislative powers upon the board of health in violation of the Constitution. They invade the powers guarantied by the Constitution to local authorities, and confer them upon officers who hold their offices by appointment from the governor and senate, and who are not chosen by the electors of the city of New York or appointed by any body so elected, and who do not not hold from any authority which invest them with the prerogatives of local legislation.

It matters not, I think, that the board of health claim to act in a more extended territory than the city of New York. Nor does it, in my opinion, contravene the principle decided in The People v. Draper, to hold that legislative powers cannot be conferred; for no such powers were originally conferred upon the police commissioners as are contained in this act, and when the legislature attempted to confer those of a similar character it was decided that it was unauthorized and in violation of the Constitution. ( People v. Acton, 48 Barb. 528.)

An objection is taken to the fourteenth section of the act (chap. 74, Sess. Laws of 1866) upon the ground that it confers judicial powers in violation of the Constitution. The first part of the section provides that "whenever any building, erection, excavation, premises, business pursuit, matter or thing, or the sewerage, drainage or ventilation thereof in said district, shall, in the opinion of the board," etc., "be in condition or effect dangerous to life or health, said board may take and file among its records what it shall regard as sufficient proof to authorize its declaration, that the same, to the extent it may specify, is a public nuisance, dangerous to life or health; and said board may thereupon enter in its records the same as a nuisance, and order the same to be removed, abated," etc. The order is to be served before execution, and the board have power to rescind, modify and re-affirm the order and to direct the execution of the original or of a new or modified order, as it may determine. By a subsequent provision of the same section, the board, upon what it may regard as adequate proof of a violation or resistance of any order, law or ordinance, may issue a warrant for the arrest of any offender. These provisions confer complete judicial authority and power to act and to pronounce judgment in the matter, more extensive and summary in its character than the powers enjoyed by any tribunal of justice or officer known to the law. I am inclined to think that this provision is in conflict with section eighteen of article six of the Constitution, which provides that "all judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature shall direct." By section fourteen of the same article: "Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities;" but under section eighteen, as we have seen, all officers of such courts must be elected by the people.

There is no authority in the Constitution for the appointment of judicial officers by the governor except in cases of vacancy, and all other judicial officers must be elected as the Constitution provides. As the board of health are appointed, I do not well see how the legislature can confer upon them any such authority as the act provides. In Sill v. The Village of Corning ( 15 N.Y. 297) it was held that the Constitution has not deprived the legislature of the power to provide for the organization of local courts of civil and criminal jurisdiction in villages. The question was entirely different from the one presented in this case, and the officer provided for was to be elected, which is not the case here. Conceding, then, that local courts may be established, the officers of such courts must be elected in accordance with the Constitution.

The provision of the act referred to does not call upon the board to act judicially in the discharge of certain duties which are imposed upon them, but vests them expressly with specified judicial powers, and, therefore, cannot be sustained. It is said that judicial duties may be imposed on a board of local commissioners which are not elected by the people or appointed by an officer or a body elected by the people, and we are referred to two cases in support of this position.

In Commissioners of Pilots v. Vanderbilt ( 31 N.Y. 270), an action was brought for a penalty under the act to prevent encroachments and obstructions in the harbor of New York, and to authorize their removal, and it was decided that the giving of notice to remove all obstructions, was in the nature of a judicial act, calling for the exercise of judgment and discretion. This is not in any way analogous to a case where power is conferred to pronounce judgment, and to issue process, the same as a regularly constituted court, and to execute that process. In Commissioners v. Clarke ( 33 N.Y. 251), no question of this nature appears to have been raised. There is no precedent in the books for the exercise of any such judicial power outside of the courts of law recognized by the Constitution, and I think it is entirely unauthorized and in violation of its plain provisions.

The first entitled action is brought to recover a penalty for a violation of an order of the board, made under the first subdivision of the fourteenth section of the act, and presents the question whether the board of health had a right to make and enforce an order abating the business of slaughtering animals, at the defendant's place of business, as a public nuisance, and as dangerous to life and health. The power thus exercised is in the nature of, if not entirely a judicial act. And conceding that such a power may be conferred, the act of the board in making the order in question, was, I think, in violation of the Constitution of this State, which guaranties that no person shall be deprived of his "property without due process of law." (Const. of N Y art. 1, § 6.) The order of the board pronounced condemnation of the defendant's business without any sort of a preliminary notice, and with no opportunity to be heard and to try the question before the rendition of judgment. The board never acquired jurisdiction over the person or the subject-matter before the condemnation was had, and a notice afterward did not remedy the difficulty or give force and vitality to their proceedings. The judgment was either valid or invalid when it was pronounced, and, unless jurisdiction was then acquired, no subsequent act can give it validity or change its real character. It is certainly an unusual, an anomalous, and a remarkable proceeding, unknown to the ordinary course of practice in judicial tribunals, to pronounce judgment in the first instance, and then to call upon a party whose property has been condemned, to vindicate himself before a tribunal which is already committed, by proof that the charge made and established by their judicial action is without foundation. More especially is such a proceeding objectionable, when it is tolerated and allowed without an affidavit to support the charge made, and the board are vested with authority to act and to make an adjudication upon "what it shall regard as sufficient proof." Under this act, a communication dictated by malice or rivalry, might be the effective instrument of destroying the property of a citizen, and inflicting a serious injury upon his reputation. And the officers invested with such power might, under the slightest pretext, and upon a groundless accusation, be the authors of the most mischievous consequences. Clearly this is not "due process of law," for no such power is ordinarily conferred upon any court of law.

The provision of the Constitution which has been referred to, means that no person shall be deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of common law; that it may be ascertained judicially that a person has forfeited his rights, a suit must be prosecuted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining title to property. ( Taylor v. Porter, 4 Hill, 147; Westervelt v. Gregg, 2 Kern. 202; Wynehammer v. The People, 3 id. 378; Embury v. Conner, 3 Comst. 511; The People v. Toynbee, 2 Parker, 514, 515, 526.) And this must be done in the regular course of administration through courts of justice. ( Rodgers v. Barker, 2 Kern. 13, 447, 454; Burch v. Newbury, 6 Seld. 374, 397; The People v. Corporation of Albany, 11 Wend. 539; Wynehammer v. The People, 3 Kern. 426.) By the fourteenth section of the act, as we have seen, the board of health have authority, without notice to the party to be affected by their proceeding, by partial and hearsay evidence, to declare the property of a citizen a nuisance, dangerous to life and health, and unless afterward satisfied by the owner that the judgment is erroneous and should be reversed, to affirm and ratify the order thus made. Such a proceeding is unknown to the proceedings in any court of justice, and there is no power, in my opinion, to delegate to a board of health the right to define what shall be a nuisance, or to make acts criminal which the law holds innocent. ( Mayor, etc., v. The Board of Health, 31 How. 395.) It is no answer to views I have expressed, to say that the legislature have the power to confer upon the board the right to do and to make it their duty to do what every citizen has a right to do in his own motion, for the board seek to recover a penalty on the strength of their official action, and by virtue of the order made by them, not as individuals or upon their responsibility as officers alone, but by virtue of an act authorized and done in pursuance of an act of the legislature. They attempt to deprive a person of his property under the provisions of this act, and to recover a penalty because that person refused to obey an unlawful and an unauthorized order. If the position is a sound one, that the legislature have not the power to confer the authority claimed to be exercised, then this feature of the act is unconstitutional and void. And if it be void, then the adjudication made under this provision is without authority, and can be attacked collaterally as well as in a direct proceeding for that purpose. It is a jurisdictional question, and such questions are always open for consideration. This proposition is so plain, that it is unnecessary to cite authorities to sustain it. It follows that the proceedings may be reviewed without a certiorari, and that the action for a penalty in the first action cannot be maintained.

The second action, which is brought to recover penalties for violations of an ordinance of the board, presents the question as to the validity of the ordinance, and as I have shown that the board does not possess legislative powers, the result is inevitable that the action cannot be maintained.

In the third action which is brought against the board, the plaintiff asks that the board may be enjoined from enforcing the ordinances prohibiting the driving and slaughtering of cattle, and that it be declared void. It is conceded by the case that the business of driving and slaughtering cattle impairs the enjoyment of life, that unhealthy exhalations are generated, and that a large number of physicians pronounce the business dangerous to health.

In Catlin v. Valentine (9 Paige, 579), it was held that to constitute a nuisance it is not necessary that a noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces what is offensive to the senses, and which renders the enjoyment of life and property uncomfortable. (See also Brady v. Weeks, 3 Barb. 157.) The plaintiff virtually admits that his business is a nuisance, and asks the court to interfere to prevent its abatement. When the question of the existence of a nuisance is in doubt, the court will grant an order restraining the board of health from abating it. (See Rogers v. Barker, 31 Barb. 447; Mayor v. Board of Health, 31 How. 385; Shuster's case, not reported.) But where it is entirely clear that a nuisance does exist, an injunction should not issue. In this case, however, it is apparent that the ordinance is void, because the legislature cannot delegate to the board the power to legislate, and the judgment should be to that effect, but without an injunction.

In the fourth case, the question arises whether an injunction should issue to restrain the defendants from enforcing the order made by them, declaring the business and premises of the plaintiff a nuisance. If I am correct in holding that the order was made without lawful authority, and is void for that reason, then the proceedings are null and void, and the plaintiff is entitled to the relief demanded. As I have already stated, the question is one of a jurisdictional character, and the party affected by the order is not confined to the remedy of a certiorari to test the validity of the order made.

Several other questions are presented, but as those already discussed dispose of the cases, it is not necessary to examine them. Upon the grounds already stated, I am of opinion that the judgment of the court below should be affirmed in all except in the third case, in which it should be modified in accordance with the views here expressed.

GROVER and CLERKE, JJ., concurred.

Judgment of General Term reversed in each case, and judgment ordered for the appellants, with costs, and, in the case of number two, for the two penalties claimed.

THOMAS FITZGERROLD, Plaintiff in error, v. THE PEOPLE.

BACON, J (dissenting).

This is a writ of error directed to the Supreme Court in the second judicial district, bringing up the record of an indictment, conviction and sentence of the plaintiff in error, and which had been removed into that court by writ of error to the Court of Oyer and Terminer in and for the county of Westchester.

The plaintiff in error, Fitzgerrold, was indicted in the Westchester Oyer and Terminer for the alleged crime of murder. The substantive allegation in the indictment, on which the question presented below and in this court arises, is, that "Thomas Fitzgerrold feloniously, willfully, and of his malice aforethought, did kill and murder Ellen Hicks, by shooting her through the body with a leaden bullet discharged from a musket," etc. Upon this indictment he was brought to trial before the Westchester Oyer and Terminer, in December, 1866, and the record states that the jury, in returning their verdict, "say that they find the said Thomas Fitzgerrold guilty." Upon this conviction he was sentenced to be hung the ensuing January. The Supreme Court in the second district affirmed the judgment and ordered the sentence to be carried into execution, and a writ of error having been brought to this court, with a stay of execution, the case comes here for a final adjudication.

The point made by the counsel for the plaintiff in error is, that the indictment only charges murder in the second degree, and the jury having returned a general verdict of guilty, the Court of Oyer and Terminer had power only to pronounce a sentence authorized by law in the case of a conviction for murder in the second degree, and that the sentence actually pronounced was unauthorized and void. The question is one of much interest and importance, and has never been presented for adjudication since the change made by the statute of 1862 defining murder in a somewhat different manner from that contained in the Revised Statutes, and creating two classes or degrees of that crime. At common law there were no degrees of murder, and the short and comprehensive definition of the crime was, "when a person of sound memory and discrimination unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, express or implied." (3 Coke's Ins. 47.) The essential ingredient of the crime was malice aforethought, or prepense, as the older books called it, but this might be implied from circumstances which necessarily proved its existence. The Revised Statutes undertook to give a more precise as well as a fuller definition of the crime, but they did not in reality enlarge the scope of the definition, nor include in it any thing which had not been embraced by the common law within the general category of murder.

The Revised Statutes defined the killing of a human being (unless it be manslaughter, or excusable or justifiable homicide) to be murder in the following cases:

"1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.

"2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

"3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony."

This was the entire definition, and although distinguished by different characteristics and attendant circumstances, the definition embraced but one offense, not separated into nor discriminated by grades or degrees of crimes. After the Revised Statutes went into operation, the case of The People v. Enoch arose, and was decided in the Supreme Court, and ultimately in the Court of Errors. (15 Wend. 159.) He was indicted for murder, and the averment was, that the offense was committed "feloniously, willfully and of malice aforethought," using substantially the old common law form, and not adopting the words of the statute. Enoch was convicted of murder, and sentenced to be executed. The Supreme Court held that the indictment was good, and sustained the judgment, and the Court of Errors approved the decision, deciding, among other things, that the principal object of the statute was to restore the common law of murder as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus to restrict certain cases to the grade of manslaughter, which theretofore were held to be murder.

If there had been no change in the statute, I am inclined to the opinion that this decision (although, as I think, erroneous in principle, and hardly to be reconciled with some recent holdings of this court) would control this case and uphold the judgment. But in 1862, the legislature saw fit to modify the provisions of the Revised Statutes in relation to the crime of murder, and among other things, to create two grades of the offense, to wit, murder in the first and in the second degree. In defining murder in the first degree, they changed the definition of the Revised Statutes of murder, by dropping the third subdivision of section five, and substituting in place of it the words "when perpetrated in committing the crime of arson, in the first degree," and then added to the section a clause that such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, "or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree." It will thus be seen that the transaction thus distinguished, and which had been embraced in the original section defining murder, was taken out of that section, and made the distinguishing mark of murder in the second degree, and whatever practical difficulty may arise, as it has not unfrequently arisen, in ascertaining what other taking of life may fall outside of the definition of other grades of homicide, and within this new class or degree, there is no difficulty in determining that a case which presents these features, to wit, killing by one engaged in the commission of a felony, though without a predetermined intent to take life, is murder in the second degree.

While the crime of murder was a single offense, admitting of no degrees, the case of The People v. Enoch might be deemed a controlling authority; but the moment the legislature changed the law of murder, by creating a higher and lower grade, it seems to me to have lost its applicability, if, indeed, it be not, in spirit, an authority against the ruling of the Supreme Court in the case now under consideration. The chancellor, in maintaining the doctrine that an indictment in the old common law form, charging the crime to have been committed with malice aforethought, was sufficient under the Revised Statutes, says, the object of the legislature was, not to create a new offense of murder, but to restore the ancient common law on that subject, as it existed when the common law form was originally adopted; and, therefore, he holds that the indictment in that form was good for the crime of murder committed under any of the circumstances specified in the three subdivisions defining the crime. If this be so, then the indictment in this case was a perfectly good indictment for murder in the second degree, since the killing, which was murder under the circumstances described in the third subdivision of the fifth section of the Revised Statutes, is now removed from the category of murder in the first degree, and constitutes murder in the second degree. The jury, therefore, having found a general verdict of guilty under an indictment which may be held to charge the crime of murder in the second degree, the court had no right to assume that he was guilty of murder in the first degree, and pass a sentence which only a conviction for such an offense would authorize.

The decision in the case of The People v. Enoch proceeded, in effect, as we have seen, upon the ground that the Revised Statutes, in respect to the crime of murder, had not altered the common law, and that the definition therein given was but the adoption, or introduction into the statute, of the common law description of the crime. It was, consequently, held that the words, "malice aforethought," were so nearly identical with the words, "premeditated design," as to fall within them. But with all proper respect for that decision, which appears to have been the unanimous judgment of the Court of Errors, affirming the judgment of the Supreme Court, it seems to me that both courts overlooked and ignored the most important qualification of the words, "premeditated design," contained in the words following it in the statute, to wit, that the design thus premeditated must be one "to effect the death of the person killed, or of any human being." The ruling purpose must be one to effect death; whereas, the words, "malice aforethought," may be referred to a dominant and controlling purpose having another object, and the death effected occurs as an adventitious result of the original act to which the motive impelled. And this is obviously the case where death is caused by one engaged in the commission of a felony, without any original design to cause the death of any human being whatever.

This view is very clearly presented in the opinion of JOHNSON, J., in The People v. Clark (3 Seld. 385-393), where he says, that "malice prepense had attained a broader meaning than belongs to the term, `premeditated design.' The intent to take life was not necessary to constitute malice prepense. Even express malice, or malice in fact, is defined to be a deliberate design of doing any bodily harm to another, unauthorized by law, and by no means necessarily involved an intent to take life. The change, therefore," he adds, "which the statute has effected, by substituting the word `design,' in place of `malice,' is to require what the common law did not require — the existence of an actual intention to kill — to constitute that crime under the first subdivision of the fifth section." And this view is said to be sustained in those States where the crime of murder has been distinguished by statute into murder in the first and second degrees.

The logical sequence from these propositions would seem to be, that, even under the Revised Statutes, the proper mode of framing an indictment for murder would be to follow the very words of the statute, and thus to indicate, by specific averments under which one of the three subdivisions of the fifth section, defining the offense, the alleged crime was committed. But, however that may have been, under the law as it now stands, creating degrees of the crime of murder, the obligation seems to me imperative to pursue the mode thus indicated; and my opinion is, that an indictment for murder must show, on its face, that it is for murder in the first degree, if that is the offense intended to be presented for trial; and that, where the record shows nothing but an indictment which is a good indictment for murder in the second degree, and the jury responds by a simple verdict of guilty, the only sentence that it is competent for the court to pronounce is the one prescribed by the statute for murder in the second degree.

In the case of Dedieu v. The People ( 22 N.Y. 178), this court enunciated the principle which, it seems to me, should govern this case. In the course of the opinion, Judge DENIO, speaking of a statute specifying different degrees of crime, says: "An indictment for any of these offences must charge the defendant, with certainty and precision, with having committed the acts under the circumstances and with the intent mentioned in the statute. If any of the ingredients contained in the statute definition are omitted, the indictment is fatally defective, and the defect is not cured by the verdict. The act which is charged as an offense must be described with such a degree of certainty as to distinguish it from other transactions, so that a party may not be indicted for one thing, and tried for another." See, also, the opinion of INGRAHAM, J., in Fallinger v. The People (15 Abb. 128). This mode of charging alleged crime in an indictment seems to me not only just, but elementary, and should be governed by the same rule that applies to a pleading in a civil action by a party who claims a penalty, or seeks to enforce a remedy given him by statute, and who must bring his case precisely and specifically within the provisions of the statute, or his pleading will be fatally defective.

It is no answer to say, that, on the trial in this case, all the proof necessary was given to show that the defendant was guilty of the crime of murder in the first degree, and that we may assume the court instructed the jury properly as to the character of the prisoner's guilt; and, therefore, no injustice has been done. This we cannot know, for this case comes before us without any evidence whatever, but simply upon the record, showing under what indictment the trial took place, and what verdict was rendered — a verdict entirely consistent with an indictment and a trial for murder in the second degree, and where, if any other verdict had been rendered, it would, in my judgment, have been erroneous.

If these views prevail, the judgment of the Supreme Court must be reversed; and the question then arises, what disposition shall now be made of the case? We cannot send back the prisoner for a new trial, since, if there were no other difficulty, the constitutional immunity of the defendant, which forbids his being twice put in jeopardy of life for the same offense, would protect him from the perils of another trial. But I see no objection to remitting the case to the court below, for further action. Our reversal, in fact, touches nothing but the sentence. Upon an indictment, good for the offense of which we must assume the defendant was found guilty, a proper verdict has been rendered. Every thing is right but the sentence; and as that will be greatly mitigated by the position in which the case now stands, the record should be remitted to the Supreme Court, with directions to cause the plaintiff in error to be brought before it, to receive the sentence which the statute authorizes the court to pronounce upon a conviction for the crime of murder in the second degree.