¶1This 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.
¶2The 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 character*526istic 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.
¶3Having 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 *527both 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.
¶4In 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
¶5'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.
¶62. It is assigned for error, that the indictment is culi-*528tied 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.
¶73. 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.
¶8It 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 *529the 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.
¶9Were 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.
¶10dissented.
¶11If 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.
¶12From a proposition and conclusion so plain and obvious, let us pass to the position assumed by the state, against Mitchell.
¶13The 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.
¶14That 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.
¶15*535When 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.
¶16Our 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.
¶17Yet 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. -
¶18When 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?
¶19When 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.
¶20Upon 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.
¶21Chitty’s C. L., 281, margin, gives this rule: all in-*536clictments 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.'
¶22, 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.
¶23And 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.)
¶24“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.”
¶25To make correctly an application of these principles, let us look to what the legislature have done, on the offence of murder.
¶26The eigthty-second section of the penal code repeals all laws coming within the jpurview and meaning of this' act.
¶27All 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.
¶28The 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 *537and 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.
¶29How 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.
¶30Touching 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, *538an 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.
¶31Leaving 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.
¶32That 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.”
¶33I 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 *539given 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.
¶34We 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.
¶35It 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 *540degree.” 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.
¶36If, 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.
¶37To 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.
¶38But 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.
¶39Again: 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.
¶40The 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. *541But 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.
¶41The 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.
¶42These 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.
¶43The 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 *542the 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?
¶44The 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.
¶45Section 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.
¶46These 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.
¶47The 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.
¶48Both 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.
¶49Judgment affirmed.