
    Mitchell vs. The State.
    An indictment in the common law form for murder, Í3 good, and will support a conviction in the first degree, under the statute of 1829, oh, 23.
    An indictment is entitled March Term, IS32, the caption of the record shows that the court at which the indictment was found, sat in April: Held, that the caption is no part of the indictment; and for the variance between it and the record, the judgment will not be arrested, or the indictment quashed.
    A was tried and convicted in the circuit court, of murder in the first degree; on appeal to the supreme court, the judgment was reversed, and the judges intimated in their opinions that the facts would authorize a conviction for murder in the second degree; on the trial of A, a second time, the jury, with the intimation of the court before them, found him again guilty of murder in the first degree, upon which the court refused to grant him a new trial: Held, under these circumstances, the supreme court would not grant a new trial.
    This was an indictment for murder, on which the plaintiff in error was twice convicted. The record of the term at which the indictment was found, contains the caption in the following words and figures, to wit: “Be it remembered, that a circuit court of law and equity, begun and held for the county of Jackson, at the court house in the town of Gainesborough, in said county, on the first Monday, being the second day of April, in the year of our Lord one thousand eight hundred and thirty-two, and fifty sixth year of the independence of the United States; present, the honorable Nathaniel W. Williams, judge of the circuit courts of law and equity for the third judicial circuit’” The record then sets out the proclamation of tile sheriff, also the venire facias to the sheriff, and the electing, empannelling and charging of a. grand jury in proper and legal form; and then states, that on the same day, “the grand jury came into court and presented a bill of indictment against Jesse Mitchell for murder, endorsed by the foreman, a true bill.” The indictment set out in the record is in these words, to wit:
    
      “State of Tennessee, ) Jackson Cy., 3d Judicial circuit. )
    “March1 term of the circuit court for said county, in the year of our Lord eighteen hundred and thirty-two.
    “The grand jurors for the State of Tennessee, being elected, empannelled, sworn and charged, to enquire for the body of the county of Jackson aforesaid, upon their oath, do present, that Jesse Mitchell, late-of said county, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the twenty-fifth day of March, in the year of our Lord one thousand eight hundred and thirty-two, with force and arms, at, to wit: in the county of Jackson aforesaid, in and- upon one Samuel Wilson, in the peace of God and the State, then and there being, feloniously, wilfully, urn-lawfully, and of his malice aforethought, did make an assault, and the said Jesse Mitchell, with a certain axe made of iron and steel, of the value of one dollar,-which he the said Jesse Mitchell in both his hands then and there held, the -said Samuel Wilson, in and upon the right side of the neck of him, the said Samuel Wilson, between the head and shoulder of him the said Samuel Wilson, then and there unlawfully and of his malice aforethought, did strike, thrust and penetrate, giving to the said Samuel Wilson, then and there, with the axe aforesaid, in and upon the right side of the neck of him the said Samuel Wilson, between the head and shoulder of him the said Samuel Wilson, one mortal wound, of the length of ten inches, and of the depth of four inches, of which said mortal wound, the said Samuel Wilson, in the county of Jackson aforesaid, on the day aforesaid, and' the year aforesaid, did instantly die; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J.esse Mitchell, the said Samuel Wilson, in manner and form aforesaid, unlawfully and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made .and’ provided, and against the peace and dignity of the State.” To this indictment, the defendant on his arraignment pleaded not guilty, and was put upon his trial at March term, 1835, when the following proof was submitted to the jury, as appears from the bill of exceptions:
    “Andrew Cummins, after being duly sworn, deposed, thát on or about the twenty-fifth day of March, eighteen hundred and thirty-one, Samuel Wilson came to where he ’lived, which was in Jackson county, and on a place which he had shortly before that time rented of said Samuel Wilson. His object was to run a line between the place he lived on, and the lands of Mrs. Mitchell, mother’of the defendant. lie went with Samuel Wilson and his son H.. Whson, to a spring that was on the lands of Mrs. Mitchell, with a view of searching for a corner said to be near the spring; Mrs Mitchell came to the spring where ,they were, expressed a wish that Jesse, the defendant, should be present when the line was run, that he was at a neighbor’s malting rails. Witness went for him; shortly •after the defendant came to them at the spring. Hugh-let Wilson used the compass. They set out from near the spring, and run the line, taking in about one quarter of an acre of land, before that time plowed by defendant. When they measured the distance, no corner could be found; they went down a very steep hill, and Mrs. Mitchell stopped near the fence; Samuel Wilson and witness started back towards the house of witness, with a son of his, a small 'boy,,in company, they fell in company with Mrs. Mitchell, near the field through which they had passed; they continued on towards the house. They ■were met by another son of witness, Woodson Cummins, also a small boy; Samuel Wilson, the deceased, and defendant were walking a few steps ahead of Mrs. Mitchell. Witness sent his son Jackson on to the house to get some whisky; when they had got within a few steps of the house, 'he heard deceased say to defendant, Jesse, my son, you have plowed too far. Defendant said, if I have, 1 will tend it. Deceased said, T suppose not; but you and Cum-; mins for that. When defendant spoke in a louder tone of voice, I will show you whether I will tend it or not. Witness cast his eyes towards deceased and defendant, when he saw defendant in the act of striking deceased with the edge of the axe on the back part of the neck.' He saw the axo just before it reached the neck of deceased; deceased instantly fell; he, witness, halloed and run to him, and put his hands round his middle and raised him up, his chin fell forward on his breast; he spoke to deceased; he never uttered a word, drew but two or three breaths and died. Defendant immediately ran off to his mother’s house, where he lived. Witness halloed very loud, when Hughlet Wilson, the son . of deceased, who was not out of sight, came up, and they-carried deceased into the house. The whole breadth of the axe was cut into the back part of the head and neck; the wound appeared very deep, but could not say whether the neck-bone was severed or not. Woodson Cummins, son of witness, was close by deceased when he fell. The stroke was given, and deceased expired in Jackson county, in the State of Tennessee. Immediately after deceased was carried into the house, Hughlet Wilson got upon his horse and rode to the house of James M’Colgin, who was brother-in-law to deceased, and lived about one mile distant; immediately after Hughlet Wilson started, the defendant came out of his house, which was about one hundred yards distant, loaded the gun, and started towards witness, who immediately got on the horse of .deceased and rode off from apprehension of danger; defendant came a short distance towards the house oí witness and turned his course, and he saw no more of him until he saw him at court. Deceased had no weapon but a small walking stick in his hand; stated, that deceased was a very peaceable and respectable man, and lived across the line, in Kentucky. Witness, with his family, lives in the State of Indiana. Witness farther states, that defendant and deceásed were walking near the line they had Run, when he struck deceased. The defendant carried bis axe with him all the time they were together. He did not see any use defendant had for his axe when they were running the line, as he, witness, had one for the purpose of making the survey; stated, that defendant was hard of hearing, but could hear common conversation. He was reputed a very honest and peaceable man. Defendant was at work at Mr. Atterberry’s, and brought his axe away with him when he was done or quit work. Mrs. Mitchell is mother of defendant, a very old woman, and her line run within a few steps of witness’ door, and the yard was not fenced in. Witness saw defendant the evening before deceased was killed, and something was said about running the line spoken of; defendant said he wanted to be along when the line was run.
    Woodson Cummins, second witness in behalf of the State, alter being duly sworn, deposed, that on the day that Samuel Wilson was killed, he was at the spring, where deceased, Hughlet Wilson, Jesse Mitchell, (defendant) Mrs. Mitchell, and his father, and a brother older than himself were; then they all set out from near the spring running a line; he remained at the spring; after some short time he started to where they were running the line, and met deceased and Jesse Mitchell, the defendant, together, a little ahead of his father and Mrs. Mitchell; his elder brother was in company; Hughlet Wilson was not with them. His father sent his elder brother on ahead to get some whisky; when they got near to the house, he was walking on one side of deceased and defendant on the other. Heard deceased say to defendant, “Jesse, my son, you have plowed a little too far over.” “Well,” said defendant, “if I have, I will tend it.” Deceased said, “I suppose not, Jesse; but you - and Cummins for that. When defendant spoke in rather a louder tone of voice, and said, “I will show you whether I will tend it or not,” and instantly struck deceased on the back part of .the neck with the edge of his axe, and deceased fell close by him. His father, Andrew Cummins, halloed out as the blow was made, and run up and raised the deceased partly up; he drew a few breaths and died. The defendant instantly run off to his house; witness’ father halloed very loud, and he looked and saw Hughlet Wilson running up. They carried deceased into the house and laid him down; witness’ father sent him to the spring for some' water. He saw defendant come out of his house, load his gun, went a few steps towards his father’s -house, when his father got upon the horse of deceased and rode off some distance, defendant turned his course up through the peach orchard and went off; witness stated that he was now in his fifteenth year. Witness’ father, A. Cummins’ family, used out of Mrs. Mitchell’s spring, out of sight of the house; Mitchell’s line ran right before his father’s door. Witness had been ordered to go for water, and Jackson was sent for whisky when the killing occured.
    Hughlet Wilson, third witness in behalf of the State, after being duly sworn, deposed, that on the evening before his father, Samuel Wilson, was killed,- there was something said about running the line between the lands of his father and Mrs. Mitchell, mother of the defendant; when 'the line was run accordingly next morning, they, that is, deceased, Andrew Cummins and witness, met at the spring of Mrs. Mitchell, with a view to look for a corner; Mrs. Mitchell came to them and said she wished defendant to be along when the line was T<un. Andrew Cummins went for him, where it was said he was making rails;. shortly thereafter he came to them at the spring; he had his axe with him; deceased selected a tree as the corner, and referred to John Hamilton as having said that was the corner; defendant stated that there was no dependence in him, and stated that the corner was a beech; witness asked -defendant for his axe to cut what seemed to be a mark, but defendant failed to give his axe. 'They set out from that tree, and witness used the compass. They run on near the house where Andrew Cummins then'lived. aud before they ran out tlieir distance, passing through the ’field, they descended a very steep hill. Mrs. Mitchell stopped near the fence. They ran out the distance and could find no corner; they made considerable search. The defendant carried with him his axe, using it as a staff. In making the search, he got off.some distance; they all left him and went towards the bouse. Shortly after they got out of sight, he heard loud halloing, and feeling somewhat alarmed, he ran to them; when he got in sight, he saw his father, the deceased, down, and Andrew Cum-mins on his knees before him holding him a little up; he ran to where they were, threw down his Jacob staff and compass, and raised up the head of deceased and found he was dead; discovered that he had received a wound on the back part of the head and neck, which was several inches wide, and appeared very deep; he could not say whether the neck bone was severed or not, but his head fell forward very limber. His father, the deceased, had no weapon but a small raían, which he walked with. Witness and Andrew Cummins carried deceased into the house,- and he immediately rode off to the house of Col. M’Col-gin; states he saw nothing of Mitchell, the defendant. The spot where he found deceased lying, was in Jackson county, State of Tennessee. States that he has been at the palace and saw where, he was informed, a line had been run by Mr. Galbreath, which was about eighteen or twenty feet from the one run by him, giving that much more land to Mrs. Mitchell. Stated that Mrs. Mitchell lived between latitude thirty degrees and thirty minutes and what is called Matthews’ line; deceased had appropriated the land in virtue of a Kentucky land warrant some years before. He heard deceased, on the day he was killed, say to Mrs. Mitchell, in presence of defendant, she' could have any timber she wanted from his land. He, witness, had never seen defendant before he arrived at the •spring. Hoes not know that defendant heard the deceased speak to his mother, or witness to defendant, when 
      the axe was asked for. Witness, when speaking to tbe jury, used a low tone of voice.
    —7— Matthews, fourth witness for the State, after being duly sworn, staled, that defendant, Jesse Mitchell, (who was his neighbor) came to his house to buy some corn; he bought a barrel, and 'as he recollects, they shelled half a barrel, and defendant took it off; while there, defendant and witness had some conversation about deceased taking his mother’s land and running it out; defendant said if he came there to run out the land again, he would kill him,. This conversation took place shortly before the deceased was killed; as he recollects, was in March. Witness, in the same conversation, asked defendant-why he lived upon the place where he did, that the land was very poor; defendant said it was very healthy, and that the water was very good, and he liked to live there. .Witness introduced'the conversation to defendant by ? saying the land was poor, persuading him to move; and also first mentioned Wilson’s surveying the land.
    John P. Foster, fifth witness for the State, after being duly sworn, deposed and stated, that some months before deceased was killed, defendant came to ''his house, they lived neighbors; they had a conversation about deceased taking the land of defendant’s mother; defendant said that if deceased ever came there to run out that land again, he would kill him or be killed. Witness introduced the conversation. There was no other person .present, and witness never mentioned the ^conversation, to his- knowledge, till he was sworn before the grand jury.” The evidence on the part of the State closed here.
    The defendant introduced Welcome Butler, who deposed that he was well acquainted with the defendant, and he had known him from a child. He always sustained a good character for honesty and peace. He was very remarkable for his honesty; he had heard of his going twenty-miles to pay nine pence. . He was a very industrious, hard working man; he was hard of hearing. He,, witness, bad commanded a. company in the neighborhood where defendant lived. He was excused from performing military duty on account of his situation. He, defendant, was deemed a very moral person; was weak minded, and could not take learning.
    Thompson Atterberry, second witness for defendant, after being sworn, stated that he knew the defendant; he was a hard working, industrious, peaceahle, honest and moral man. He was hard of hearing. He went to the place where deceased was killed, the same day and shortly after it happened; heard Andrew Cummins tell over how it took place; he told witness the first thing he saw, deceased was falling on his knees, then on his hands.
    Moses Atterberry, third witness for defendant, after being sworn, stated, that defendant was at his place hired, making rails on the day of killing. Cummins came for him, and defendant left there and went towards home; when sent for, he carried his axe as usual; says that defendant was very careful of his tools, and wotild often carry his axe with him rather than leave it. Stated that defendant was a very honest, industrious, peaceful mam Defendant is hard of hearing; defendant did not expect to work there any more that day, having done what he went there to do.
    Susan Bickerstaff and Martin Masters stated, after being sworn, that they had a conversation with Andrew Cummins the day before he was examined in this cause as a witness; heard him say that he was paid for coming, that there was about seventy dollars due to him; said it was a money-making business; wanted the money; stated he would not come back again unless he was paid up; was sorry for Jesse, but needed the'money. Martin Masters deposed, that ho heard Cummins talking to Mrs. Bicker-staff, and the latter part of the conversation was such as she stated; he did not hear the first. Cummins was drunk when he had this conversation. This was all the evidence in the cause.
    
      The case was tried before Judge Caruthers, who ■charged the juiy in the words following:
    uNo guilt attaches to homicide committed in the ne-eessaiy defence of one’s person, or of his, land, when it is attempted by violence to deprive him of the possession. This case requires no further explanation of the law in relation to excusable or justifiable homicide: The killing to which the law attaches .the guilt of 'felony, is manslaughter and murder. When it is perpetrated in the ■heat of passion, excited by a sufficient provocation, it is manslaughter. Nothing short of an assault, or an indignity to the person, will be a sufficient provocation to extenuate the killing to manslaughter, when it is committed by a deadly weapon, used in a deadly manner. Reproachful words'will not so extenuate such a killing.: When, however, the killing results from a blow inflicted by an instrument, and in a manner not likely to kill, insulting words are a sufficient provocation to reduce it to manslaughter. When the killing is perpetrated in the heat of passion, generated by any provocation insufficient to reduce it to manslaughter, it is murder in the second decree. He who kills under the influence of excitement, is not so guilty as he who kills deliberately. Hence our statute establishes a distinction between them, which the common law did not recognize. The common .law looked to the cause of his excitement, and required that that should be sufficient. • It granted no indulgence to a killing under the influence of passions which arose from an inadequate cause. Our law makes an additional allowance for the infirmity of human nature, and regards only the state of the feelings, the actual existence of the passion, without reference to the cause which generated it. However inadequate the provocation, if the passions are aroused and under their influence the killing is perpetrated, it is only the second degree of murder. What would excite one man to fury, would scarcely move another. Reproachful language would arouse some men to a higher pitch of passion, than an assault or a gross personal indignity would others. Our law extenuates the guilt of the former, in charity and in justice to human nature, The common law only extenuates the guilt of the latter. In the absence of passion prompting to the homicide, the slayer acts from reflection; and his guilt rises to the highest degree. The description of murder in the first degree, contained in our penal code, communicates its character with considerable perspicuity. It is murder by poisoning, lying in wait, or any other kind of wilful, malicious,' premeditated, deliberate killing. Poisoning and lying in wait contain in themselves conclusive evidence of premeditation and deliberation. But they are not the only kinds of killing which would evince the same state of mind, the same premeditation, that is, that the killing was previously thought of and proposed; the same deliberation, that is, that the purpose was executed without the imputation of excited passion, the same malice, a cold depravity of heart, the same wilfulness, done intentionally, shall also be murder in the first degree. If the purpose was deliberately formed, and then provocation intervened, and the killing took place, it shall be presumed to have been committed under the influence of passion, and will be murder in the second degree, if the provocation was insufficient to reduce it to manslaughter, unless it is shown that the slayer was prompted, not by passion, but by his previously settled purpose to do the deed. If it is doubted whether it was murder or manslaughter, it must be found manslaughter; so a doubt between murder in the first and second degree makes it your duty to find the lowest degree of guilt. And a doubt whether it was self-defence or a guilty killing produces an acquittal. Igno-ranee, or weakness of mind does not excuse an agent of his crime.' It requires insanity, or idiotcy. If you find the defendant guilty of manslaughter, you must say for what period, between two and ten years, he shall be imprisoned in the penitentiary. If murder in the second degree, between ten and twenty-one years. If in the first degree^ barely say guilty of murder in the first degree.
    The jury found the defendant guilty of murder in the first degree; he asked the court for a new trial, and the same being refused, he moved in arrest of judgment; and assigned as a reason in arrest, “That the indictment was defective, and insufficient, and did not- authorize a finding of murder in the first degree; but the court overruled the motion in arrest, and passed judgment upon the finding of the jury; from which judgment the defendant appealed in the nature of a writ of error to this court.
   Green, J.

This indictment for murder is in the common law form. The plaintiff in error was convicted of'murder in the first degree, by the jury, and judgment was pronounced accordingly; from which judgment this appeal in error is prosecuted. It is now insisted, that this indictment does not charge the offence for which the prisoner is convicted, and that no judgment can be pronounced upon it. The same objection was urged when this cause was before the court at a former term. A majority of the court, howj ever, were of opinion, that the common' law indictment did charge the party with the offence-of which he was found guilty. This question has been again argued, and as it is pressed with much ingenuity, and earnestness upon the court, it has been reconsidered. After the best reflection and examination I have been able to bestow, on the subject, I still entertain the opinion, which I delivered on the former trial of the cause. In addition to the reasons then advanced, I will add some.- other considerations, -which tend to confirm the opinion heretofore entertained.

The second section of the penal act, defines murder in the terms of the common law definitiipn. Murder is ¡a particular grade of felonious homicide- Its characteristic feature is, that the killing must be perpetrated “with malice aforethought ” This ingredient existing, and the homicide is murder. Keeping this in view, let us examine the third section of the act. It declares, that “all murder,” not every homicide, “which shall be perpetrated by means of poison,” &c. “shall be deemed murder in the first degree.” Now it is manifest, that in this clause of the third section, the offence described is not of a higher grade, than that described in the second section. Whether the killing be perpetrated by poison, or under some excitement with an axe, can make no difference in the general distinguishing feature of the offence, to wit, “malice aforethought. True, there may be a greater degree of atrocity in the one case, than in the other, b,ut they are both murder, and neither of them is more than murder. An indictment, therefore, which charges the party with murder, will embrace both cases, and authorize a conviction for either. That the legislature had this view of the subject, results, I think, from the following considerations, in addition to what is said in my former opinion.

Having defined the offence of murder in the second section, the third commences with the words, “All murder,” and goes on to discriminate between murder in the first and second" degrees. In the use of these words, “All murder,” reference is.had to murder, as above defined in the preceding section, and they speak of the very offence there defined, and go on to speak of the various manner in which if may be perpetrated. By the use of the words, “All murder,” in this connection, it seems manifest to my mind, that they understood and intended the word “murder” to be a general legal definition of the crimes they afterwards enumerated, as being gome of the methods by which this offence is perpetrated. Another argument, in favor of this position, may be drawn, from the use of the word “degree,.” It certainly would jie incorrect to use this expression, but for the fact that both the tilings spoken of as “degrees,” belong to the same general class, and hence they arc called degrees of murder; and as the word murder includes all its do-grees, consequently, a charge containing the legal definítion of murder, is a charge in all its degrees.

In addition to this, another argument is deducible from the concluding language of the third sdetion; when it is said, that the jury shall find and determine “the degree of the crime.” Here the legislature call it “the crime,” thereby demonstrating that each degree was considered by them as belonging to the same offence. The crime refered to, is murder as defined in the second section, and therefore a charge in the words of the second section is good for both degrees. v

'This court, in the case of Kirby vs. the State, at the last term, decided, that although the indictment charges the offence as being murder in the first degree, yet, that a verdict of guilty as charged, was bad, because the third section requires the jury to ascertain, in “their verdict,” the degree of the crime. But if it was intended, that the indictment should charge the offence, in the words of the third section, there was no reason for requiring that the jury should “ascertain m thoir verdict, whether -it be murder of the first or second degree.” The degree being expressly alledged, a finding of guilty in manner and form as charged, would be a finding of the highest degree, and if the jury believed it was a less offence, they would have been directed by the court so to pronounce it, without this enactment of the statute, in the same manner that a party is found guilty of manslaughter, when the indictment charges the offence to be murder. But if, as I think it is manifest, the legislature intended, that the' common law form of an indictment should still, prevail in all cases of murder, of whatsoever grade, then the. direction that the verdict of ■ the jury should state the degree of the crime, was proper and necessary.

2. It is assigned for error, that the indictment is culi-tied as of the March term of Jackson circuit court, 1832, when the caption of the record shows that the court set in April. The statement of the term of the court, which is put at the head of this indictment, is no part of it; and in England, is not put at the head of their indictments. They commence with Middlesex, to wit, “The jurors for our Lord the King, upon their oath, present,” &c. 2 Chitty’s Crim. Law, 177: Archb. Crim. Plead. 2. The caption must set forth the court in which, and the jurors by whom, and also the time and place at which the indictment was found, and that the jurors were of the county. Jac. Law Dic. Indictment III. The caption is no part of the indictment, but is a formal statement of the proceedings, as above set forth, which occur previously to the introduction of the indictment, and which, in England, did not appear until the return of a writ of certiorari, or writ of error. 1 Chitty’s Crim. Law, 326. It commenced, “Norfolk, at a general sessions of the peace,” &c. and then contained a statement, of the facts above mentioned. 1 Chitty’s Crim. Law, 327. All these requisites exist in the caption to the indictment in this case. It is therefore seen, that the words “March term,” at the top of this indictment, are wholly immaterial, and may be disregarded. It is true, if these words had been a material part of the indictment, the whole would have been void for their repugnancy with the term and date set forth in the caption. Jac. Law Dic. 3. But as these facts truly appear in all those parts of the ‘record, in which it is material they should be stated, the immaterial statement of a wrong term of the court, at this place, does not vitiate the proceedings.

3. It is insisted, that the evidence only makes this a case of murder in the second degree, and that the jury ought so to have found it.

It appeal’s from the evidence, that the deceased Was surveying some land, in one boundary of which the prisoner was interested. When they came to a place where the prisoner had done some ploughing, a conversation between the prisoner and the deceased, not calculated to excite an ordinary man into anger, arose, relative to the ploughed land, which the deceaséd said was beyond the prisoner’s boundary; and upon the deceased saying to the prisoner, that he reckoned he would not tend said land, which was beyond his line, the prisoner raised an axe, 'and struck a blow with the edge thereof, into the back part of the head and neck of the deceased, of which he instantly died.

Were it not for the good character the prisoner has proved, coupled with the facts, that he is ignorant, of weak intellect, and hears very badly, circumstances which enlist our sympathies in his behalf, and plead strongly in his favor, the case would exhibit great depravity. Taking these facts into view, I think that the jury would have been warranted in finding a verdict of murder in the second degree. But as that opinion was expressed by some of the members of this court, when the cause was here two years ago, and as, with that intimation given them, another jury, with the case placed fairly before them by the circuit judge, have found a verdict of murder in the first degree, this court cannot, upon such a case, give a second new trial, after it has been refused by the circuit court. Let the judgment be affirmed.

Catron, Ch. J.

It is insisted in this case, that no judgment can be pronounced upon the prisoner for the crime of murder in the first degree, as found by the jury, because, he is not indicted for that offence; the indictment being good for murder in the second degree only. The indictment is in the common law form, except that it concludes against the form of the statute. The second section of the penal code, or act of 1829, ch. 23, defines,the crime of murder as follows: “If any person of sound memory and discretion, unlawfully kill any reasonable creature m being;, , ’ , J , ;' ~ .. .. - and under the peace of the otate, with malice atore-thought, either express or implied, such person shall be-deemed guilty of murder.” The third section provides, “that all murder which shall be perpetrated by means of poison, or by lying in wait, dr by any kind of wilful, deliberate, malicious and premeditated killing; or which shall be committed in the perpetration of, or attempt h> perpetrate any arson, rape, robbery, burglary, or larceny,, shall be deemed murder in the first degree; and all other kinds of murder shall be . deemed murder in the second degree: and the jury, before whom any person indicted for murder, shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree. But if such person shall confess his guilt, the court shall proceed ■ by impannelling of a jury, and examination of testimony, to find and determine the degree of the crime, and to give sentence accordingly.” The second section of the act above quoted,' gives the general definition of murder, of course, it includes murder in both its degrees. The definition of murder, by the common law and by the statute is precisely the same. All murder, in fact all felonious homicide by the common law, is included in this general definition. At common law, if a man killed anothfer with an axe, with malice aforethought, and with an intent to rob him, or committed the same offence deliberately, but without the intention to rob, or committed it upon a sudden heat, but without any adequate provocation, so as to mitigate the crime to manslaughter; each of these cases, and numerous others that might be enumerated, would come under, and be included in the general definition of murder; and the mode of charging the offence in each case would be precisely the same. If each of these offences would be included in the general definition of murder, at common law, it is impossible that they are not included in precisely the same definition given by the statute. It follows then, as a necessary consequence, that the second section of the act of 1829, includes murder in both its degrees. If, then, murder in both its degrees is included in the definition given in the second section of the act, an indictment, charging the offence' according to said second section, must likewise include murder in both its degrees. The defendant here is indicted for the crime of murder generally. The offence charged in the bill of indictment is murder, according to the common law, and according to the second section of the penal code. Murder in both its degrees is charged upon him in the bill of indictment. This view of the question is still further enforced by the provisions of the third section above ■ quoted. It says, “All murder,” not all unlawful homicide, but, “all murder” (that is, all murder, as defined in the second section) perpetrated by means of poison, by lying in wait, &c. shall be murder in the first degree, and all other kinds of murder, as before defined, shall be murder in the second degree. And. the jury, before whom any person “indicted for murder” shall he tried, shall, if they find such person guilty thereof, ascertain in their v.erdict, whether it be murder in the first or second degree; but if such person shall confess his guilt, the court- shall proceed by empannelling of a jury, and examination of testimony, to find and determine the degree of the crime. What crime? The crime of murder generally, as defined in the second section, which crime - includes two degrees, as prescribed in the third section.

The next question to be considered is, does the statute contemplate that indictments for murder shall be as heretofore, in the common law form? It is, believed so far as relates to murder, and all kinds of felonious homicide; that even without reverting to the seventy-second section of the penal code, an indictment for murder ought to be founded upon the second section of the act, and should describe the offence, according to the definition of “the crime” there given. The second section of the act defines “the crime; the third section lays down certain , , . , , . , J , . rules by which the jury are to he governed, m ascertam-jng the degree of guilt, that is, the circumstances of aggravation or'extenuation. Most unquestionably, then, the indictment ought to be founded upon the second section which defines the crime. So far as it relates to murder, the only difference between an indictment for murder upon the statute, and an indictment for the same offence at common law would be, that the one would conclude against the form of the statute, and the other'would he good without it. The seventy-second section, however, does away even with-this difference. It provides, that “all indictments f<?r offences under this act, which are offences at common law,.shall be good, if the offence be described according to the common law, or according to this statute, and the party charged, on conviction, shall receive the punishment precribed by this act.” Is murder one of the offences enumerated in this act? It is the very first offence that is enumerated. Is murder as defined in this act, an offence at common law? It is the identical same crime, both by the common law and by statute. Is the offence of murder, with which the defendant is accused, described or charged in the indictment according to the sommon law, or according to this statute? It is described and charged both according to the common law and the statute.'

The defendant’s counsel contend, that the expression “according to the common law,” does not refer to the definition of the offence at common law, but to certain rules of the common law, which are to be observed in drawing indictments. This argument is altogether untenable. The statute says, the indictments shall be good, if the offence be described, “according to the compion law, or according to this statute.” Now there are no rules in the statute for drawing indictments, for offences mentioned in the act, which are offences at common law, .except the definitions that are given of them. The expression, “according to this statute,” must mean, accord- ‘ mg to the definitions or descriptions ot the offences given in the statute; and the expressions, “according to the common law,” must mean according to the definitions or descriptions of the offences given at common law.

The conclusion, then, is, that under this section the indictment is good, the offence being described according to the statute; and it is also good as a common law indictment, for although it concludes against the form of the statute, that does not vitiate it as a common law indictment. The-indictment then is good both at common law and by statute.

It is asked, though, how is the degree of crime to be ascertained, if it is not charged in the bill-of indictment? The crime of murder, which includes both its degrees, is charged in the bill of indictment, and the statute directs “the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof,” that is of murder; “ascertain^ in their verdict whether it be murder of the first or second degree; but if such person shall confess his guilt, the _ court shall proceed by the empannelling of a jury, and examination of testimony, to firid and determine the degree of the crime.” It is the verdict of the jury, then, and notrthe indictment that is to ascertain the degree of the crime. , It is uséless to enlarge upon this part of the case, as it' is fully discussed in the opinion delivered by Judge Green, in this cause, when it was before the court at a previous term, and which is reported in 5 Yerg. Rep. 340.

The conclusion which results, is, that indictments for murder, under the act of 1829, ch. 23, are good, if the indictment is good at common law; and that the verdict of the jury, and not the indictment, is to ascertain the degree of the crime, whether it be murder of the first or second degree; and if upon an indictment for murder in the common law form, the jury find the defendant guilty of murder in the first degree, the sentence of death must follow if there is nothing else in the case to obviate it.

I concur with Judge Green in his opinion and view of the other points, in this cause, as delivered at this term.

The foregoing opinion was drawn under my directions, and at my request, -by James Campbell, Esq., the author of the Penitentiary Code, and which I adopt,, and deem jthe true construction of the act.

Peck J.

dissented.

If a lawyer be asked why in an action of debt the plaintiff shall not recover more than the demand laid in the declaration, the answer would naturally be, that it is all he asks, and recurring to his own premises, he must be . estopped to say, he will go beyond them; and even then when declaring for what he demands, he must lay such facts'and circumstances, as show him entitled to it, otherwise the law will withhold judgment in his favor.

From a proposition and conclusion so plain and obvious, let us pass to the position assumed by the state, against Mitchell.

The law declares, that when one of sound mind shall unlawfully kill a reasonable creature, in being under the peace of the state, with malice aforethought, such person shall be deemed guilty of murder. But this murder may be one of two degrees, making a higher and lower grade of murder, called the first and second degree, and differently punished.

That we may know when the first or- higher degree of murder has been perpetrated, the law declares, that if it be done by poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious, and premeditated killing, it shall be murder in the first degree; but if not done under these circumstances, and yet be done wilfully and maliciously, it shall be murder in the second degree.

When a penalty is asked, what must be shown? The answer is, all such facts and circumstances as will show, that the party demanding has right to the penalty demanded. This is the rule even from the motion against a constable, up to the highest grade of action, information, or prosecution.

Our bill of rights, sec. 9, declares, that an accused shall have a copy of the accusation against him, and may demand the nature and cause of it. For what, I would ask, has this guaranty been ingrafted upon the frame work of our government? Surely not, that he may be mocked at and taken by surprise.

Yet if it be true, that he may be charged with facts, which make an offence of a less grade, and yet be made answerable for facts not laid, of a higher grade, he will he mocked at and surprised by the attack. -

When he examines the bill, he does not find in it a charge of murder by poison, or by lying in wait, or of wilful, deliberate, malicious and premeditated killing; on the contrary, it is a charge of another nature and degree, a wilful and' malicious killing only. What is the penalty? —not the life of the accused. The State has not said she. sought it; and shall she he permitted to say she will have that, by indirect means, which she will not inform us directly she is seeking?

When the Jew took the bond for the pound of flesh, he omitted to insert the blood, and he lost the penalty, because he could not take the one without the other; nor has the decision of the case ever been complained of. And now,, for the first time, we are called upon to reverse the decree.

Upon principle, no-question, to my mind, can be plainer, than the one presented. Least, however, it be said, that the general rules above laid down may be of' doubtful application to this case, we will come more closely to the question upon express authority.

Chitty’s C. L., 281, margin, gives this rule: all in-clictments upon statutes, especially the most penal, muse slate all the circumstances which constitute the definition 0f thé offence in the act, so as to bring the defendant precisely within it.'

, And this rule applies as well to those which take away the benefit of clergy from offences, which exist at common law, as -those by which new felonies are created, nor will the conclusion, contrary to the form of the sta*-’ tute, aid the defect.

And not even the fullest description • of the offence, were it even in the terms of a legal definition, be sufficient, without keeping close to the expression of the statute,” (same book, 286,) “and the precise and technical language in which they are expressed.” (p. 287.)

“These rules, respecting the exact words of the statute, by which the offence was created, apply equally to acts of parliament, by which the benefit of clergy was taken away from the offences, which existed at common law; for if the crime be not in general brought within its exact words, the prisoner can receive only the judgment,, as if no alteration had taken place, and the statute had never been enacted.”

To make correctly an application of these principles, let us look to what the legislature have done, on the offence of murder.

The eigthty-second section of the penal code repeals all laws coming within the jpurview and meaning of this' act.

All previous statutes and the common law, relating to-this offence, are, by the penal code,- swept away. Murder, as the offence was before known, though it did not-cease to be a crime,- was, in future,- to be considered- of in a new aspect.

The common law, which considered murder by wil-fully and maliciously lulling another, was repealed, so far as respected the punishment, and a new description of murder, not the common law description, was defined and enacted by the statute. Murder, in the first degree, by wilful, deliberate, malicious and. premeditated killing, was not known by that description, in Tennessee, until defined by this statute.

How are we to know, if an offence be a newly created one, but by the description of it? It does not exist in the imagination or by association of ideas concerning it; "it is by the name we know it if it be new. Murder, in the first degree, is new to us; so is murder in the second degree. Robbery by the king’s Jfighway was a new offence, although robbery, before the statute, was an offence. The place where, or the circumstance how, may be the subject of enactment. To show the grade of the same- offence, in the eyes of the community, is in future to be viewed in a new light. . This is exactly the case before us. Murder, now, as a crime, is not viewed as formerly. Murder, in' one sense, is not punished with death; murder, in another sense, is punished with death. Under the statute, (23 Henry 8th, ch. 1,) where a man was indicted for robbing in a certain king’s footway, leading from London- to Islington, he was admitted to his clergy, because ’ the statute, which takes away clergy for the crime, describes the place as “in or near a king’s highway,” which -ought thus to have been stated. Robbery was an offence before the statute;. but was clergeable; the statute took away the clergy; in all cases? I answer no, only in the-case specified'in the statute. There was no repeal of all laws as in this cáse. In arguing the question, this point is wholly overlooked, but it must be seen that it is the bearing point in the case.

Touching murder, the common law ceased the moment the act took effect, and the moment the act took effect, murder received a new name in the law, and had a new punishment affixed to the commission of it; as it stands now, it is wholly and entirely'- statutable.' The definition given in the second section, (see penal code,) does not conflict with this opinion, for the third section is an explanation, an enlargement of the second; it gave other names and other definitions. To be governed by the second section alone, we must be thrown back upon the common law, but this cannot be, for that is repealed, and to get the sense of the legislature, we take the whole as well as the definition of the subdivided crime, as to its effect, the punishment. The statute, if repugnant in the second and third sections, must receive a sensible construction, and it can receive none, unless we look into and weigh the definition given for our certain guide, in the third section. I say none, because the second section only reenacts the common law at the moment it is repealed; therefore, by it alone we are cast back precisely where we started from.

Leaving this part of my subject — the common law is repealed; the offence of murder, in the first degree, for the first time, is enacted and known; we are thrown directly upon the record to find the offence charged against the prisoner. With ihe act before us, to assist the search, there is no ambiguity; the case described in the indictment is not of the description in the act of the crime of murder in the first degree, but it is covered by the next offence, mentioned in the third section; being done with malice aforethought, it is murder in the second degree, and there is no escaping from this conclusion, unless the seventy-second section is so far assisting in the premises, as to make this a case of murder in the first degree, contrary to the facts charged in the indictment.

That section is in these words, “All indictments for offences enumerated in this act, which are offences at common law, shall be good if the offences be described, and charged according to the common law, or according to the statute, and the party charged, on conviction, shall receive the punishment prescribed by this act.”

I will now give to this section its whole force and weight against the prisoner, and there can be no construction which touches his life; mark, the judgment is so given according to the statute, hut upon what? upon the conviction. And on what is the conviction founded? upon the indictment. And what facts are, charged in the indictment? Only those which make the offence murder . in the second degree, and judgment on this is according to the statute. It does appear to me there is no avoiding these conclusions.

We call for an issue in legal proceedings, that the point may he -made to which to direct the evidence. The express malice, which constitutes the higher crime, is kept out of view; this express malice is therefore not in isáue; the finding of the jury was, therefore, heyond the allegata or issue, and certainly for so much void: on this we cannot give judgment and follow the statute. As in philosophy, we know the stream cannot rise higher than its source,- so the jury cannot go beyond what the State chose to submit. It is contrary to all experience, that the. lesser can include the greater. But a more minute view of the argument, urged against" the accused, will now be taken.

It is supposed, (judge Green’s argument) that the words, “all murder,” in the beginning of the 3d section, necessarily include all the degrees of that crime afterwards enumerated in that section, and consequently, the definition of murder in the second section, includes every degree of it. This argument moves in a circle, and terminates precisely where it began. And it cannot but be seen, it proves too much, for two reasons: 1st. Because such forced juxtaposition of the words murder and degrees, and the construction put upon them when placed out of their proper connection, destroys the statute, and throws the matter upon the common law; for withofit the common law, "we would have no definition. 2. Because the words, “all murder,” as there used, must stand in connection with the enumerated offences which constitute murder in the first degree, -and stand disjoined from the after words, “and -all other kinds of murder shall be murder in the second degree.” The legislature separate expressly the degrees °f guilt, but the argument melts them into one, as they stood before, and then gives such a construction as repeals the statute.

If, without thus playing the words and shuffling them from one section into another, and back again, they were simply left to stand where the legislature and common sense has placed them, there would be no room for argument. The statute, compared with the indictment, would be found not to have been pursued so as to malte out the higher offence] and we would be saved the trouble of making the statute what it is not, that thereby the life of the deceased may be reached.

To state the proposition sensibly, and according to the statute, it would run thus: “murder shall consist in the ‘wilful and malicious killing of another’ without excuse;” and this murder shall be punished by imprisonment in the penitentiary for - years.

But all murder perpetrated by poison, lying in wait, or other wilful, deliberate, malicious and premeditated killing, shall be punished with death. On thus staling the proposition, there would be left no reasons for argument or doubt.

Again: it is supposed, that as in the third section it is enacted, that the jury in their verdict shall ascertain the degree of the crime; consequently, the legislature intended by the word “crime,” murder in all its degrees, as constituting but one offence, with different grades of guilt. The answer is, that if the legislature so intended, that body also intended that to make out a case for the statute to operate upon, the higher crime should be charged in the indictment.

The argument supposes the admission of the very thing denied, to wit: the form of the indictment, as at common law, good, to reach the higher and lower grade of offence, if the indictment had laid the facts constituting the higher crime, then 11 would admit the conclusion contended for. But there is nothingTo admit in’ favor'jof conclusions to be drawn from false premises; the|mquiry, as to the degrees of guilt, can only become necessary in a case^where the charge includes both degrees, which* this does not. Why find the degree of the guilt, if there be but one degree attempted to be drawn? Any conclusion from this proposition must fail.

The next question I shall consider, is that .which arises upon the facts which are relied upon to prove, the killing within the jurisdiction. The proof is, that Mrs. Mitchell lived between the line thirty degrees and thirtylmin-utes north; and the line run by Matthews; whether north or south of thirty-six degrees thirty minutes, is not clear. Mrs. Mitchell lived, on fifty acres of land, the line of which was the matter in dispute, and gave rise to the killing. The deceased held landj (which adjoined) by a Kentucky warrant, which could not be laid by the laws of Tennessee, south of thirty-six degrees .• thirty minutes. :See the compact with Kentucky, section — . On this •disputed land, the deceased had a tenant, in orhear whose yard, and near the disputed line, and in sight (of Mrs. Mitchell’s door, the slaying happened.

These facts and circumstances show that the slaying was on the disputed border between Kentucky and Tennessee, north of thirty-six degrees thirty minutes. We have often resorted to facts and circumstances, the proof not being clear, from the record, to show that the slaying was within the county. Young vs. the State, at Knoxville, is recollected. If circumstances not more conclusive than the above will be sufficient to reach the life of the-aecused, certainly those equally strong may be toAave him; for itjis a badjrule that will not operate both ways.

The above ..proof being sufficient to establish the place north of thirty-six degrees thirty minutes, what is the la.w arising thereon? The constitution of the State of Tennessee adopts the line of North Carolina. By the charter fixing the boundaries of that State, the line is established at thirty-six degrees thirty minutes north. See the charter, 1 Scott’s Revisal, page 1. Can Kentucky and Tennessee agree upon any other line, so as to give to T ennessee the exercise of a jurisdiction which she would not have without such grant of power from Kentucky?

The constitution of the United States, section 10, provides, that “no State shall enter into any agreement or compact with another State without the consent of congress.

Section 3. No new State shall be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of congress.

These clauses stand opposed to the compact, so long as the consent of congress is wanting; and it is not pretended such consent has ever been had. There can be no doubt that consent could have been easily obtained. Still as it has not, and being myself sworn to support die constitution, my duty compels me to give to the accused whatever of law fairly operates in his favor.

The section of country where the slaying happened, being beyond the chartered limits of the State, and the compact with Kentucky being inoperative for the reasons above given, no jurisdiction for this offence, committed north of thirty-six degrees thirty minutes, was communicated to the circuit court of Jackson county.

Both of the questions discussed in this opinion are of the utmost consequence to the accused and to the community. They are both suddenly raised, and have been ably debated. Though overruled in my opinion, from the deepest conviction of the correctness of my position, I have only discharged my duty in giving the result of my deliberations. I am for reversing the judgment.

Judgment affirmed.  