Opinion of the Court-Ducker, J.

objection being without merit, the judgment should be affirmed.

It is not necessary in charging an offense to plead evidentiary facts, but only the ultimate facts; and it is for the court or jury to determine the degree of the crime proven. "It was not necessary at common law to even charge that murder was committed in the perpetration of another crime, and it was sufficient to charge it in the common form; and, upon proof that the crime was committed in the perpetration of another crime, such proof stood in lieu of the proof of malice aforethought. This doctrine is sustained by ample authority of the courts of other states under statutes similar to ours." Ex Parte Dela, 25 Nev. 346.

The form and requisites of any indictment have been prescribed by statute. These requisites have been repeated in subsequent enactments providing for charging by information. Rev. Laws, 7052, 7058-7060.

By the Court, DUCKER, J.:

The appellant was convicted of murder of the first degree and sentenced to life in the state prison.

This appeal is taken from the order denying a motion for a new trial. The sole question presented by appellant for determination is that the indictment upon which he was convicted does not charge murder of the first degree, but only murder of the second degree. The charging part of the indictment is as follows:

"That said defendant, Emiliano Munios, on the 15th day of August, 1918, or thereabouts, and before the finding of this indictment, at the said county of Humboldt, State of Nevada, did then and there, without authority of law, and with malice aforethought, kill and murder one Raffaelo Ricci, by cutting him with a knife."

At the time appellant is charged to have committed the crime for which he was convicted, the statute dividing murder into two degrees provided, in part:

"All murder which shall be perpetrated by means of

Opinion of the Court-Ducker, J.

*

poison, or lying in wait, or torture, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, or which shall be committed by a convict in the state prison serving a sentence of life imprisonment, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree. * * Every person convicted of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury trying the same; * * * and every person convicted of murder of the second degree shall suffer imprisonment in the state prison for a term of not less than ten years, and which may be extended to life." Rev. Laws, 6386, as amended by Stats. 1915, c. 48.

The statute, in one respect, is an anomaly, and we doubt if its counterpart exists or has ever existed upon the statute books of any country. It is a shocking reflection, and repellent to the common dictates of humanity, to think that, under its provisions, all the countless and atrocious forms which murder may assume, except those specially designated, including the cruel and deliberate killing of the innocent and young, the aged and the helpless, were deemed murder of the second degree, punishable by imprisonment, the minimum of which was but ten years. This strange, unnatural legislative creature came into being in 1915 and expired in 1919, "unwept, unhonored and unsung" except by the few, who, through the medium of its dispensing power, went unwhipped of public justice. We seriously question the power thus exercised, withdrawing in a large measure that security of life, guaranteed to the people of this state by the organic law of the land. The legislature of 1919 restored to the statute the provision that every wilful, deliberate, and premeditated killing shall be deemed murder of the first degree, and we must believe that the omission was either inadvertent, or its effect not fully appreciated.

"Murder is the unlawful killing of a human being,

Opinion of the Court-Ducker, J.

with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned." See section 119 of "An act concerning crimes and punishments" (Rev. Laws, 6384).

By section 201 of the Criminal Practice Act (Rev. Laws, 7051) the following form is provided:

"The State of Nevada, plaintiff, against A. B., defendant. * * * Above named is accused by the of a felony (or the crime of mur

grand jury

*

*

der * * * ), committed as follows: The said A. B., on the A.D. 19...., or thereabouts, at

day of

authority of law and with malice aforethought, killed Richard Roe, by shooting with a pistol.

* * * ""

1. The legislature has the power to dispense with the common-law formalities required in charging murder in an indictment, and prescribe such a form. State v. Millain, 3 Nev. 409.

It is well settled that an indictment charging murder in the form prescribed will support a verdict of murder of the first degree. State v. Millain, supra; State v. Thompson, 12 Nev. 140; State v. Hing, 16 Nev. 307; State v. Wong Fun, 22 Nev. 336, 40 Pac. 95.

The indictment in the instant case, therefore, would have been sufficient to support a verdict of murder of the first degree before the amendment in 1915 (Stats. 1915, c. 48) dividing murder into two degrees, by which the provision "any other kind of wilful, deliberate and premeditated killing" was omitted from the statute. If it would have been sufficient then, it certainly was not insufficient at the time the appellant is charged to have committed the crime for which he stands convicted, for the amendment did not alter or affect the statutory definition of murder. It simply limited the cases of first-degree murder to those special instances designated in the statute.

The general definition of murder in the statute includes both degrees, the same as at common law it

Opinion of the Court-Ducker, J.

included all cases of felonious homicide, not only where the murder was perpetrated by means of poison, or lying in wait, or torture, or by any other kind of wilful, deliberate, and premeditated killing, etc., but also those cases where the killing was not characterized by any particular atrocity, or by deliberation or premeditation. State v. Thompson, supra.

But it is urged that the provision which makes all other kinds of murder, except those designated, murder of the second degree, does away with the common law and leaves murder of the first degree an offense particularly described by the statute, and embodies certain characteristic elements which must be pleaded in the indictment. That the legislature of 1915 recognized no such effect is reasonable to assume from the fact that no attempt was made to change the statutory form prescribed for charging murder, or any of the statutory tests for ascertaining the sufficiency of an indictment. These particular instances in which murder is conclusively presumed to be murder of the first degree were embodied in the statute when the form for charging murder was prescribed. Consequently it must have been deemed that an indictment substantially in this form would sufficiently charge them. In Ex Parte Dela, 25 Nev. 353, 60 Pac. 220, 83 Am. St. Rep. 603, this court said:

"It was not necessary at common law to even charge that murder was committed in the perpetration of another crime, and it was sufficient to charge it in the common form; and, upon proof that the crime was committed in the perpetration of another crime, such proof stood in lieu of the proof of malice aforethought."

The use of poison in the commission of the crime of murder, or by lying in wait, etc., its commission in the perpetration or attempting to perpetrate any of the felonies enumerated in the statute, are merely circumstances of aggravation, which, in the law, amount to, or are the equivalent of, premeditation.

2. In alleging other forms of murder it was never

Points decided

necessary in this jurisdiction to charge deliberation or premeditation. Upon principle, then, why was it necessary, under the amendment in 1915, to allege the equivalent in order to charge murder of the first degree? We hold that it was not, and that the indictment is sufficient to support the verdict.

The decisions cited by counsel for appellant to sustain his contention and holding in effect that an indictment charging homicide without charging a premeditated design, or lying in wait, torture, etc., will not support a conviction of murder of the first degree, are opposed to the great weight of authority, and contrary to the principle enunciated in State v. Thompson, supra. The judgment is affirmed.

[No. 2406]

AL. L. CLARK, RESPONDENT, v. LONDON ASSURANCE CORPORATION (A CORPORATION), APPELLANT.

[195 Pac. S09]

1. INSURANCE--FAILURE TO FURNISH PROOFS OF LOSS WITHIN TIME PRESCRIBED DOES NOT PREVENT RECOVERY.

Under the New York standard fire insurance policy, providing that in case of loss insured shall render sworn proofs within sixty days, the failure to render proofs of loss within such time does not prevent a recovery.

2. INSURANCE-PROOFS OF Loss NOT PART OF CONTRACT.

Though a contract of insurance provides for the rendering of proofs of loss, such proofs do not, when rendered, become a part of the contract.

3. INSURANCE-PROOFS OF Loss NOT BINDING ON INSURER.

The insurer is not a party to the proof of loss, and does not participate in making it, and is not bound by the proofs or by any statement contained in or omitted from such proofs.

4. CONTRACTS-FORFEITURE MUST BE CLEARLY EXPRESSED.

Courts are not diligent in searching for an excuse to justify a forfeiture or convert a precautionary clause into one of forfeiture, and nothing will be held as contemplating a forfeiture, unless such idea is clearly expressed.

APPEAL from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.