THE PEOPLE v. DOLAN, 9 Cal. 576

Terry, C. T., delivered the opinion of the Court—Field J., concurring. Defendant was tried and convicted on an indictment charging him with the crime of murder in the first degree. The points taken by appellant are : 1. “ The indictment «wrongly attempts to fix or designate the degree of murder.” 2. “ It is insufficient in its statement of the acts and circumstances necessary to constitute the offence therein charged.” 3. “ It does not contain a sufficient charge to predicate thereon a verdict of murder in the first degree.” The first objection is frivolous.

It is certainly not necessary that the grand jury should designate the degree of murder, though there is no impropriety in their doing so. FTor is it perceived in what manner the defendant is prejudiced by this act. Under an indictment charging murder, the trial jury are required to designate the degree of guilt, and may find any offence included in the charge, and they have equally this privilege if the indictment charge murder in the first degree, as the offence of murder in the second degree and manslaughter are necessarily included in it. The second objection is not well taken.

We have held that the substantial facts necessary to constitute the crime charged, must appear in the indictment with sufficient certainty to enable the Court to pronounce a proper judgment, and the party to defend against the charge. But it is not necessary that they should be stated with the particularity which was required at common law.

It is sufficient if a man of ordinary intelligence can understand from the indictment, that, under such circumstances as show a felonious intent, a mortal wound was inflicted by the defendant upon the deceased, of which wound he died within a year and a day from its infliction. The third objection is founded on the absence of the word “ deliberate,” which the applicant contends is necessary to constitute the crime of murder in the first degree. The indictment charges the act to have been done with malice aforethought.

Aforethought, as defined by Webster, means premeditated; premeditate and deliberate are synonymous. The definition given of murder in the statute is, “ the unlawful killing of a human being with malice aforethought, expressed or implied.” This definition includes both degrees of murder, and it is sufficient if the indictment charge the offence in the language of the statute defining it. (People v. Parsons, 6 Cal., 487.) Judgment affirmed, and the Court below directed to appoint a day for the execution of its sentence.