¶1Concurring in Part and Dissenting in Part. I concur in the opinion of Justice Rice that the information *374is sufficient to charge the crime of murder. It will be conceded that under the common law the information would be fatally defective. (People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; People v. Lloyd, 9 Cal. 54; People v. Wallace, 9 Cal. 30; People v. Cox, 9 Cal. 32; People v. Steventon, 9 Cal. 273; People v. Coleman, 10 Cal. 334; People v, Dolan, 9 Cal. 576; People v. Judd, 10 Cal. 313; People v. Miller, 12 Cal. 291.)
¶2Beginning, however, with the case of People v. King, 27 Cal. 507, 87 Am. Dec. 95, the supreme court of California changed its former holding and held that:
“In an indictment for murder it is not necessary to aver the means by which the homicide was committed or the nature and extent of the wound, or the part of the body upon which it was inflicted.”
¶3And in the case of People v. Cronin, 34 Cal. 191, that court further held that an indictment need not aver the means or mode of death. (People v. Hyndman, 99 Cal. 1, 33 Pac. 782.)
¶4In the case of People v. Witt, 170 Cal. 104, 148 Pac. 928, the supreme court of California, in discussing the sufficiency of an information, the charging part of which, with the exception of the name of the defendant and the date upon which the murder was committed, is the same as in the case at bar, says:
“Concededly, this describes the offense of murder in the language of our statute....."Whatever may be the rule declared by some cases from other jurisdictions, it must be accepted as the settled law of this state that it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case. ’ ’
¶5The Witt case cites the case of People v. Soto, 63 Cal. 165, with approval, wherein it is held that an information in the language of the statute defining murder is sufficient to charge murder. The Idaho cases generally have used the same expression. (Matter of McLeod, 23 Ida. 257, 128 Pac. 1106, 43 L. R. A., N. S., 1813; State v. O’Neil, 24 Ida. 582, 135 Pac. 60; State v. Brill, 21 Ida. 269, 121 Pac. 79; State v. Sly, 11 Ida. 110, 80 Pac. 1125; State v. Keller, 8 Ida. 699, 70 Pac. *3751051; State v. Ellington, 4 Ida. 529, 43 Pac. 60; People v. Ah Choy, 1 Ida. 317; People v. Butler, 1 Ida. 231.)
¶6The early California cases, cited above, were decided by the supreme court of that state prior to the adoption of the California criminal practice act by the legislature of the territory of Idaho, in 1864, and ordinarily would be regarded as binding upon this court in the construction of the statute. However, in the matter of sufficiency of indictments for murder the California court changed its position shortly after the adoption of the criminal practice act by the legislature of the territory of Idaho as shown by the cases of People v. King, supra; People v. Cronin, supra; People v. Hyndman, supra; People v. Witt, supra;and many other cases not here mentioned.
¶7While it is true, as a general rule, that where one state adopts a statute from another state, it also adopts the decisions of that state, construing the statute, an exception to the rule seems to obtain where the courts of the state from which the statute was borrowed have repudiated or abandoned such construction. The Colorado court states the rule as follows:
¶8‘ ‘ The rule that courts are bound to adopt the prior judicial construction given a borrowed statute in the state from which it is taken is not inflexible. Where such construction was clearly erroneous, harsh and oppressive, or where it is inconsistent with the spirit and policy of the laws of the state borrowing the statute, courts may, and frequently do, decline to follow it. It can hardly be seriously contended that the rule should control in a ease like the one at bar, where the supreme court has repudiated and abandoned its own construction.” (Dwyer v. Smelter City State Bank, 30 Colo. 315, 70 Pac. 323; Oleson v. Wilson, 20 Mont. 544, 63 Am. St. 639, 52 Pac. 372; Goad v. Cowhick, 9 Wyo. 316, 87 Am. St. 953, 63 Pac. 584; 2 Lewis’ Sutherland Stat. Con., sec. 404.)
¶9From the foregoing it would seem that this court is not bound to follow the earlier California cases prescribing the essential elements of an indictment for murder, but is at liberty to fol*376low the later California cases and the rule hitherto announced by this court.
¶10Informations charging murder in manner and form as alleged in this ease have been held to be sufficient under statutes the same or similar to ours in the following cases: Molina v. Territory, 12 Ariz. 14, 95 Pac. 102; State v. Nielson, 38 Mont. 451, 100 Pac. 229; State v. Hayes, 38 Mont. 219, 99 Pac. 434; Strickland v. State, 19 Tex. App. 518; note to Shaffer v. State, 3 Am. St. 281.
¶11I have examined with care the case of State v. Smith, 25 Ida. 541, 138 Pac. 1107, and do not hesitate to state, that in my opinion it does not correctly state the law governing the sufficiency of an information or indictment charging murder ; that it is not supported by the great weight of modern authority, or supported as authority in testing the point raised in the instant case; that it cannot be so considered in the light of the authorities considered in this opinion, nor under the plain construction and interpretation of our statute, nor with due regard to the proper, certain and efficient administration of the law, and in so far as the rule there announced might be regarded as a precedent in testing the sufficiency of an information or indictment charging murder, the case should be overruled.
¶12I dissent from that portion of the opinion which discusses the alleged erroneous instructions and upon which this case is reversed. There is no assignment of error in appellant’s brief predicated upon the giving of either of these instructions. There is no specification of error based thereon in the transcript or bill of exceptions. The point was not urged upon appellant’s motion for a new trial, nor was it urged upon the oral argument before this court. On the contrary, it affirmatively appears on page 31 of the appellant’s brief that there never was any intention on the part of appellant to predicate error upon the giving of any instructions. I quote from appellant’s brief as follows: ■
¶13“The court instructed the jury fully on all of these matters and there was no objection to the instructions of the *377court on either side, it being conceded and agreed that they were-correct and proper.....” (Italics ours.)
¶14This court has uniformly adhered to the rule that where errors are not assigned, they will not be reviewed. And it is further well settled that even where errors are assigned, if they are not discussed either in the brief or upon oral argument- and no authorities are cited in support of the assignments, they will neither be reviewed, considered nor discussed by this court. (Farnsworth v. Pepper, 27 Ida. 159, 148 Pac. 48; Davenport v. Burke, 27 Ida. 464, 149 Pac. 511; State v. McGann, 8 Ida. 40, 66 Pac. 823; State v. Wetter, 11 Ida. 433, 83 Pac. 341; State v. Jones, 28 Ida. 428, 154 Pac. 378. See, also, Rice v. People, 55 Colo. 506, 136 Pac. 74; People v. Stein, 23 Cal. App. 108, 137 Pac. 271; People v. Valencia, 27 Cal. App. 407, 150 Pac. 68; State v. Kakarikos, 45 Utah, 470, 146 Pac. 750; 12 Cyc. 875.)
¶15Under such circumstances I cannot bring myself to believe that it is proper for this court to assign and discuss errors for an appellant which he expressly waived, abandoned and failed to assign as error.' I find no precedents in our decisions in support of such procedure. The presumption is that if the erroi’s had been called to the attention of the trial court, they would have been corrected before the ixxstructions were given. A defendant in a criminal ease ought not to be permitted to sit idly by while prejudicial error is being committed and speculate upon the result of the verdict. (State v. Baker, 28 Ida. 727, 156 Pac. 103.)
¶16Where the evidence in a given case clearly shows the defendant to be guilty of an unprovoked murder, without any justification or excuse, and the jury could not, under their oaths, have brought in any other verdict than was rendered by them, even conceding that there is error in the instructions, and the right of the appellate court to review such errors when not assigned, the judgment of the trial court should not be reversed, for the reasons as announced in an opinion by the late Justice Stewart, in the case of State v. Marren, 17 Ida. 766-790, 107 Pac. 993, 1001:
*378“Although the instruction referred to contains matter which should not have been given to the jury, we are,' however, of the opinion that the appellant could have been in no way prejudiced by the giving of such instruction. Other instructions were given to which no exception was- taken, which clearly charged the jury with reference to circumstantial evidence; and not only that, but the evidence in this case is so clear and convincing of the guilt of the appellant that the jury could in no possible manner have been influenced to return a verdict of guilty by the objectionable matter contained in this instruction; and from the evidence, the jury could not, without a violation of their oaths, fail to have found the defendant guilty, and because of this, the defendant could not have been prejudiced by the giving of such instruction.
“Bev. Codes, sec. 8070, admonishes this court: ‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’ And again, Bev. Codes, sec. 8236: ‘Neither a departure from the form or mode described by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.’ The substance of these statutory provisions is that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon the evidence no other verdict could possibly have been found. [Citing cases.] ”
¶17In State v. Silva, 21. Ida. 247-257, 120 Pac. 835-839, it is said: “That if the evidence of the defendant’s guilt is satisfactory, that is, such as ordinarily produces a conviction in an unprejudiced mind, beyond a reasonable doubt, and the result could not have been different had the instruction been omitted, the case would not be reversed because of such erroneous instruction. ’ ’
¶18*379In State v. Brill, 21 Ida. 269-275, 121 Pac. 79, 80, this court says: “That even though an instruction is erroneous and ordinarily the error would be material, yet if the evidence of the defendant’s guilt is satisfactory, that is, such as ordinarily produces moral certainty, or conviction in an unprejudiced mind, and the result would not have been different had the instruction been omitted, the ease will not be reversed because of such erroneous instruction.”
¶19The judgment of the trial court should be affirmed.
¶20Concurring in Part. — I concur in all of the foregoing opinion except that portion holding the information to be sufficient, — from that portion I dissent.
¶21While this court has repeatedly stated, in effect, that an indictment or information is sufficient which charges an offense in the language of the statute defining it, I believe that in doing so it has inadvertently fallen a little short of correctly stating a sound principle of law rather than that it has deliberately attempted to announce a new rule of pleading in criminal cases. It is said in 22 Cyc. 339: “Although the rule is frequently stated to be that it is sufficient to charge a statutory offense in the language of the statute creating it, such rule is accurate only in those cases in which the statute defines and describes the offense, and is better stated with such qualification. The words of the statute must fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, and must state all the material facts and circumstances embraced in the definition of the offense.....”
¶22“The same certainty is required in indictments on statutes as at common law, and where the statute does not define the act or acts constituting the offense so as to give the offender information of the nature and cause of the accusation, other averments conveying such information must be added, even when the offense is not capital. The indictment must also be framed with such certainty that a judgment may be pleaded in bar to any subsequent prosecution for the same offense.”
¶23*380The territory of Idaho, in 1864, adopted the criminal practice act of California, which had been enacted by the legislature of that state in 1851. According to a well-established rule of statutory construction our legislature is held to have enacted this law with full knowledge of the interpretation which the supreme court of that state had placed upon it and with the intent that it be so construed here. Of course any interpretation placed upon the law by the California court subsequent to the date of its enactment by the legislature of Idaho would not, if contradictory of its former decisions, have any binding effect upon this court.
¶24The act of the territorial legislature of 1864, above referred to, has been re-enacted in the state of Idaho, and the part thereof by which the sufficiency of this information must be tested is to be found in secs. 7677, 7678, 7679, 7686 and 7687, Rev. Codes, the language of which is practically identical with sections 237, 238, 239, 246 and 247 of the California criminal practice act of 1851.
¶25Sec. 7677 provides: “The indictment (or information) must contain ....
“2. A statement of the acts constituting the offense in 'ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. ’ ’
¶26The following form is provided in sec. 7678:
“The State of Idaho against A. B., in the District Court of the - Judicial District, in the County, of -, - Term, A. D., nineteen -:
“A. B. is accused by the grand jury of the County of-by this indictment, of the crime of (giving its legal appellation, such as murder, arson, or the like), committed as follows:
“The said A. B., on the-day of-, A. D. nineteen .-, at the County of-, (here set forth the act or omission charged as an offense).”
¶27Sec. 7679 is: “It must be direct and certain, as regards:
“1. The party charged;
“2. The offense charged;
*381“3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”
¶28Sec. 7686 is, in part, as follows.: “The indictment (or information) is sufficient if it can be understood therefrom: . . . .
“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended;
“7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the ease”; and sec. 7687 is as follows: “No indictment (or information) is sufficient, nor can the trial, judgment or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits.”
¶29The supreme court of California construed the criminal practice act of that state, as applied to homicide cases, prior to its adoption as the law of the territory of Idaho, in the cases of People v. Aro, 6 Cal. 208, 65 Am. Dec. 503, decided in 1856; People v. Wallace, 9 Cal. 31; People v. Cox, 9 Cal. 33; People v. Lloyd, 9 Cal. 55; People v. Steventon, 9 Cal. 274; People v. Dolan, 9 Cal. 576; People v. Judd, 10 Cal. 314; People v. Coleman, 10 Cal. 334, all decided in 1858, and People v. Miller, 12 Cal. 291, decided in 1859.
¶30In these cases the court held, in effect, that the California legislation upon the subject, while intended to remove the useless technicalities in criminal pleading which had encumbered the common law and had frequently resulted in defeating the ends of justice, had wrought no material change in the requirements of an indictment except in the manner of stating the matter still recognized as necessary to be therein contained; that the necessity for a statement of the facts and circumstances constituting the offense still existed and was “recognized by the 237th section of the statute, which provides that the indictment shall contain ‘a statement of the acts constituting the offense, etc.,’ as well as the precedent *382given in the statute which points out how such facts shall be charged. ’ ’ That in indictments for murder a statement of the manner of the death and the means by which it was produced was necessary, so that the defendant might know of what crime he was accused and be enabled to prepare his defense on the facts; also in order that the jury might be warranted in its finding, the court in its judgment, and' the defendant be enabled to successfully plead a former conviction or acquittal in the event of his being again prosecuted for the same act. With this construction in view our legislature enacted the law above quoted and, as above indicated, these decisions should have more than persuasive influence upon ns in construing the law under consideration, for they are declaratory of the intent of our legislature in enacting it.
¶31In the year 1865, after the legislature of the territory of Idaho had adopted the criminal practice act, the supreme court of California decided the case of People v. King, 27 Cal. 507, 87 Am. Dec. 95, referred to in the foregoing opinions, which has since been frequently cited as an authority by that and some other courts. A part of the opinion in that case, often quoted, is as follows: “If the defendant is guilty, he stands in need of no information to be derived from a perusal of the indictment, as to the means used by him in committing the act or the manner in which it was done, for as to both his own knowledge is quite as reliable as any statements contained in the indictment. If he is not guilty, the information could not aid in the preparation of his defense. ’ ’
¶32Following the King ease the supreme court of' California has held accusations like the one here under consideration to be sufficient (People v. Murphy, 39 Cal. 52; People v. Weaver, 47 Cal. 106; People v. Alviso, 55 Cal. 230; People v. Hong Ah Duck, 61 Cal. 387; People v. Hyndman, 99 Cal. 1, 33 Pac. 782; People v. Delhantie, 153 Cal. 461, 125 Pac. 1066), as has also the courts of Montana and Arizona. (Molina v. Territory, 12 Ariz. 14, 95 Pac. 102; State v. Hayes, 38 Mont. 219, 99 Pac. 434; State v. Nielson, 38 Mont. 451, 100 Pac. 229; Marquez v. Territory, 13 Ariz. 135, 108 Pac. 258.)
¶33*383That one guilty of murder is possessed of knowledge of the means whereby the crime was committed, and stands in no need of being further informed upon that subject is quite clear; that one accused, and innocent, of murder, which may be committed by any means which the ingenuity of man can devise, could and should be aided, in the preparation of his defense, by the indictment, or information, the only means provided by law whereby he is to be apprised of the acts constituting the crime which he must be prepared to meet when placed upon his trial, is equally clear. No justification has been offered for the assertion that if the accused is not guilty, the allegation of a properly worded indictment, or information, could not aid in the preparation of his defense, and it may be stated with confidence none exists.
¶34By the information in this case appellant had notice that the state would attempt to prove he did, on or about the 11th day of June, 1915, or some time prior thereto, somewhere in Bingham county, by some means, murder the deceased. If the crime of murder is sufficiently charged, it might have been shown at the trial that appellant either shot, stabbed, strangled, drowned, starved or poisoned the deceased, or produced his death in any one or more of many other ways, but just what method of killing the state would rely upon and appellant must be prepared to defend against is not disclosed, nor can it be ascertained therefrom whether proof would be adduced tending to show that the murder was committed in the perpetration or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, or whether appellant wTould be called upon to rebut proof that he personally committed the act which produced the death, or that he aided and abetted in its commission. If this information is sufficient, it would, with a change of names, dates and places, accuse Cain of having produced the death of Abel with the same impartial uncertainty with which it would, with like changes, charge every murder committed since that first homicide.
¶35It is urged by counsel for respondent that the testimony shows the appellant killed deceased and sought to justify his act upon the ground of self-defense; that therefore he stood *384in no need of being informed by the pleading of the means whereby, and the manner in which, the homicide occurred, and that none of his substantial rights were invaded by the failure to more fully allege these facts. At the time the trial judge ruled upon the demurrer no testimony had been introduced, and the evidence cannot be read in aid of the information upon appeal, when its sufficiency has be„en called in question by demurrer. Appellant was entitled to, and should have been accorded, the benefit of a presumption of innocence, and of ignorance of the means by which and the manner in which the alleged crime was claimed to have been committed, and the prosecuting attorney should have been required to charge him in such language as to apprise him of what he must be prepared to meet, and with sufficient definiteness and certainty to enable him, in case another proceeding should be taken against him for the same offense, to plead a former conviction or acquittal. (State v. Lottridge, 29 Ida. 53, 155 Pac. 487.)
¶36Decisions to the effect that one, presumably innocent, may be locked in a prison cell, be informed that he is accused of the murder of a person named, in a certain county and on or about a time stated; that, he may thereafter be placed upon his trial and receive his first intimation when witnesses are produced who testify against him, as to the means by which and the manner in which he is accused of having committed the act for which his life is sought to be forfeited, are sadly out of harmony with the American idea of justice.
¶37In State v. Smith, 25 Ida. 541, 138 Pac. 1107, the defendant was accused of manslaughter in the following language: ‘ ‘ That the said defendant, Charles C. Smith, at the time and place aforesaid, did unlawfully and feloniously kill one Clara F. Foy, a human being; contrary to the form of the statute iu such case made and provided.” This court, holding that accusation to be insufficient, said: “To simply charge that a person committed murder or larceny merely charges the name of the offense. That alone is not sufficient. It is necessary to in some way inform the party accused as to how it is claimed he committed murder, whether by shooting, by strik*385ing a blow, by drowning, poisoning, or in some other manner perpetrating the offense; or, if he committed larceny, what property he took.” The court further stated: “A defendant before being placed upon trial for his life or liberty is entitled to be apprised not only of the name of the offense with which he is charged, but, in general terms, of the manner in which he is charged with having committed the offense. The statute is plain and explicit in this respect.”
¶38That opinion correctly states the law applicable to that case and this one, and I regret to see it overruled.
¶39The weight of the opinion of this court in State v. Sly, 11 Ida. 110, 80 Pac. 1125, as an authority in this case, may best be tested by comparing that information with the one here under consideration. The charging part of the information in this case is to be found in the foregoing opinion of Mr. Justice Rice. In the Sly case it is as follows:
¶40‘ ‘ That the said Lorenzo Payne Sly, in the county of Latah, state of Idaho, on the twenty-seventh day of January, A. D. 1904, then and there being, did then and there wilfully, unlawfully and feloniously and of his deliberately premeditated malice aforethought, kill and murder one John H. Hays, a human being, by then and there wilfully, unlawfully and feloniously, and of his deliberately premeditated .malice aforethought, shooting at and against the body and person of the said John H. Hays, with a certain gun then and there loaded with gunpowder and leaden bullet, and which said gun he the said Lorenzo Payne Sly, then and there held in his hands.” While it is true this court, in that case, gave expression to the obiter dicta quoted and relied upon in the foregoing opinion of Mr. Justice Rice, in view of the manifest sufficiency of that information, the ease ought not to be relied upon to sustain an accusation which is manifestly insufficient.
¶41The supreme court of Kentucky, in case of White v. Commonwealth, 9 Bush (Ky.), 178, having under consideration an indictment, the charging part of which is almost identical with that of the information in this case, and construing the provisions of the Kentucky Code relative thereto, which are quite similar to our law upon the subject, held the accusation to be *386insufficient, and that an indictment ought to charge the accused with a particular offense by properly specifying the facts constituting it. (See, also, Edwards v. State, 27 Ark. 493; Guedel v. People, 43 Ill. 226; Shepherd v. State, 54 Ind. 25; Arrington v. Commonwealth of Virginia, 87 Va. 96, 12 S. E. 224, 10 L. R. A. 242.)
¶42Sec. 8070, Rev. Codes, quoted in State v. Marren, 17 Ida. 766-790, 107 Pac. 993, wherein it is sought to direct this court as to what it shall consider and what it shall disregard when passing upon appeals in criminal cases, is clearly violative of sec. 13, art. 5, of the constitution, which provides: “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution.” Furthermore, the right to trial by jury, mentioned in sec. 7, art. 1 of the constitution, means a trial free from prejudicial error by a jury which has not been misdirected by the court as to the law governing the case. Such a trial is guaranteed alike to the innocent and the guilty, and it is not within the province of this court to condemn a man who has not been properly convicted by a tribunal having jurisdiction to determine the facts.
¶43Quotations from the cases of State v. Marren, supra, State v. Silva, 21 Ida. 247-257, 120 Pac. 835, and State v. Brill, 21 Ida. 269-275, 121 Pac. 79, have no proper place here. In each of those cases the judgment of conviction was affirmed, so probably no real harm resulted from the observations of the court relative to the guilt of the defendants. However, had the cases been reversed and new trials ordered, and had the court indulged in discussions having a tendency to prejudice the minds of prospective jurors against the defendants, and thus to deprive them of fair and impartial trials, we would have searched in vain for an excuse for its conduct.