¶1I concur, with my brethren, in the opinion of my brother Campbell. The Recorder properly refused to charge as requested by the defendant’s counsel. Under this information, the question of the degrees of murder was wholly immaterial. The statute has not altered the common, law definition of murder; but, recognizing it, has simply divided it into classes, or degrees of enormity, for the purpose of apportioning the punishment; and this only when the prosecution is for murder, eo nomine. Both classes or degrees are equally murder, and if the defendant committed the assault with the intent to kill, under circumstances where the killing would have been murder in the second degree, he is equally guilty of an assault with intent to murder, as if the intent had been to kill under circumstances which would have made the killing murder in the first degree.
¶2Perhaps the more appropriate charge, because the more simple, less difficult, and more easily intelligible, would have been to give the jury a definition of murder at common law, and to have instructed them that if they should find the prisoner committed the assault with intent to kill, and that the circumstances were such that, if death had ensued, the killing *297would have constituted murder under this common law .definition, they should find him guilty, otherwise, not guilty.
¶3But such a charge would he equally faultless, in point of law, if, instead of defining murder at common law, it should accurately define what constituted the two degrees of murder under the statute; because these two degrees must, together, include all cases of murder at common law.
¶4The Recorder chose the latter course; but, in defining the degrees, his attention being probably drawn only to the points on which he was requested to charge — which, I infer from the case, were the only points discussed before him — and confining his attention to the statute, which, instead of defining murder, only divides it into degrees, he inadvertently, it would seem, neglected to include in the first degree the ingredient of “malice aforethought.” But no specific objection was made to the charge on this account, which, in fairness to the Court, ought to have been made, and doubtless would have been made had the defendant’s counsel supposed the omission likely to prejudice his client. Had the attention of the Recorder been called to the point, I can not doubt it would have been at once corrected. Though the definition given by the Recorder, of murder in the second degree, may not have been technically correct, as an abstract definition, yet it was sufficiently so when taken in connection with that part of the charge which had reference to the intent, and could not possibly mislead the jury to the injury of the prisoner.
¶5The only remaining question is (admitting the general exception to the charge sufficient to raise the question), should a new trial be granted on account of the inaccurate definition of murder in the first degree ? If the error be one which might have misled the jury to the prejudice of the defendant, a new trial should be granted. If the nature of the transaction were doubtful, or the evidence of it conflicting, so that Avithout weighing the evidence Ave could not determine Avhether the defendant might not have been prejudiced by the charge; or if the Avhole substance of the evidence bearing on the trans*298action were not before us, we might not, without usurping the province of the jury, be able to say that they had not been misled. But as we have all the testimony, and the case states it to have been undisputed, and from the whole transaction we can clearly see that, under any proper charge, the jury could not, without a violation of their oaths, fail to find the defendant guilty, it must be obvious that the defendant has not been injured by the charge, that a new trial would be of no avail, and that it ought therefore to be denied.