¶1The only question, presented in this case, is, whether it was competent for the jury, upon this indictment, to find the prisoners guilty of murder in the second degree, and for the court, upon such conviction, to impose the punishment prescribed by law for such offence.
¶2Formerly, in this state, a person convicted of the crime of murder, whatever might be the attending circumstances, was liable to the punishment of death. But, in the year 1846, the legislature passed an act, in the preamble to which, they say, that “ the several offences, which are included under the general denomination of murder, differ so greatly from each other, in the degree of their atrociousness, that it is unjust to involve them in the same punishment.” It is therefore enacted, “ that all murder, which shall be perpetrated, by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, 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 be tried, shall, if they find such person guilty thereof, ascertain, in their verdict, *392whether it be murder of the first or second degree.’* The statute then provides, that a person convicted of the former offence, shall suffer death — and of the latter, imprisonment for life.
¶3It is apparent from this statute, that it was not the design of the legislature to create any new offence; or change the law applicable to murder, except so far as the punishment was concerned. The crime still remains, as it was at common law ; and in the more aggravated cases, the person convicted is liable to the original punishment, while others, whose crimes are less aggravated, are punished with less severity.
¶4It is a general rule, that in criminal cases, it is not necessary to prove all the allegations contained in the indictment, but in general, it is sufficient to prove so much of them, as will constitute a substantive crime, within the jurisdiction of the court before which the trial is had, and punishable by law. Thus, upon an indictment for murder, the jury may negative the averment that the act was done with malice aforethought, and convict of the crime of manslaughter. State v. Nichols, 8 Conn. R. 496. King v. Hollingberry, & al. 4 B. C. 329. (10 E. C. L. 346.) Rex v. Hunt, 2 Camp, 503. 2 Russ. on Crimes, 700.
¶5So if a person is charged with the commission of rape, he may be convicted of an assault with intent to ravish. State v. Shepard, 7 Conn. R. 54. The Commonwealth v. Cooper, 15 Mass. Rep. 187. And if a person be indicted for an assault with intent to kill and murder, he may be convicted of an assault with intent to kill. State v. Nichols, 8 Conn. R. 496.
¶6In most of the cases mentioned in the statute, as constituting the crime of murder in the first degree, the lesser crime is manifestly included. Thus, if the charge were, that the murder was committed by the accused, while lying in wait, the jury might find, that it was not so committed, and convict him only of the lesser offence. So, if it were averred, that the act was done by him while attempting to commit the crime of arson or rape, the jury might find that part of the charge untrue, and still convict the prisoner of murder in the second degree.
¶7Now, if the same rule applies to a case where the charge *393)S for murder by poisoning, then the conviction, in this case, was legal. The language of the statute strongly favours such a construction. It provides, that murder perpetrated by means of poison, or by lying' in wait, or by any other kind of wilful, deliberate, and premeditated killing, shall be murder in the first degree ; thereby implying, that in all cases, the crime must be the result of a wilful, deliberate and premeditated act.
¶8Hence, if any case" can be supposed, where murder may be committed by means of poison, and not be the result of such an act, then a conviction of murder in the second degree may be legal. And we de not feel ourselves authorized to say, that the case under consideration might not have been one of that description; and consequently, that the verdict is not right. Indeed, we are rather inclined to consider such the fair construction of the statute, especially as it is a highly penal one, and such construction operates against the greater severity.
¶9But, however this may be, there is another provision in the statute more unequivocal. It says, that the jury, if they find the accused guilty, shall ascertain in their verdict, whether it be murder in the first or second degree. And if lie be convicted by confession, the court shall determine the degree of crime, by examination of witnesses.
¶10This provision is positive, without any exception or qualification ; and we do not feel authorized, in the construction of a statute like this, involving the life or death of the person accused, to make an exception where the legislature have made none.
¶11We are rather inclined to think, that in all cases, the degree of criminality must be determined as a question of fact 5 and that a general conviction, upon any indictment, without such determination, would not authorise a court to impose the greater punishment.
¶12It was under such an impression, that the court below, in submitting the case to the jury, informed them, that in case they should find the prisoners guilty of the offence charged against them, the statute made it their duty to determine the degree of their guilt. And the jury having so done, their verdict must stand.
¶13*394We therefore advise the superior court to overrule the motion in arrest, and render judgment upon the verdict.
¶14Motion in arrest overruled.