tíal ingredients, and in order to convict a defendant of murder in any one of these three ways the willful, deliberate, and premeditar. ed intent to kill must be alleged and proven. *** Under the fourth provision of this statute, it may not be necessary to prove any intent to kill, and an information might be good and might be sustained by proof which was entirely wanting in either allegation or proof of any intent of the defendant to kill the deceased. * * * Under this statute [referring to the statute defining murder in the second degree] the intent or purpose with which the act is done by which the life of the deceased may be destroyed is made an essential ingredient of the offense charged, and in order to convict of murder in the second degree the purpose or intention with which the act that results in the death of the deceased is done must be alleged and proven, and such is the law as declared by this court" -citing State v. Young, 55 Kan. 349, 40 Pac. 659. The argument is quite ingenious and interesting, but is not consistent with the authorities nor with itself. By implication it makes murder in the second degree a greater crime than the first, second, and "fourth kind" of murder in the first degree, in that it is said under this fourth" kind an information might be sustained that was wanting in allegation or proof of any intent of the defendant to kill the deceased. So far as the language of the statute is concerned, this might with equal reason be said of murders committed by means of poison or by lying in wait. The language employed in the statute to define murder in the first degree is generations old, and had a well-settled meaning long before it was adopted in this state. It was adopted in the state of Pennsylvania in 1794. The settled meaning is uniformly held to be that, to constitute the first degree of the crime, the murder must be committed willfully, deliberately, and premeditatedly, but it is not necessary to constitute the crime that death should be the willfull, deliberate, and premeditated purpose and object of the act which constitutes the crime. It was said as early as 1813 by Chief Justice Tillman in White v. Commonwealth, 6 Bin. (Pa.) 179, 6 Am. Dec. 443: "In an indictment for murder, it is not necessary so to describe the offense as to show whether it was murder in the first or second degree. It has not been the practice since the passage of this law (which in defining murder in the first degree is identical with our statute, except the words "or other felonies" are omitted) to alter the form of Indictment for murder in any respect. * It seems to be taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree by their verdict." See, also, Commonwealth v. Flanagan, 7 Watts & S. (Pa.) 415, decided in 1844. At the common law it was not es sential to allege or prove the specific intention to kill if the act from which death ensued was malum in se or done with a design to commit a felony. 2 Whart. Crim. Law, § 997; Bish. Crim. Law, § 694. Our statute defining murder in the first degree is identical with the Missouri statute from which it was probably taken, and the same doctrine is there maintained as in Pennsylvania. State v. Meyers, 99 Mo. 113, 12 S. W. 516; State v. Foster, 136 Mo. 653, 38 S. W. 721. Proof that a homicide was done in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree. The only essential difference between murder in the first degree and murder in the second degree is that the former is committed after deliberation and premeditation, which elements do not inhere in the lower grade of the crime; but all the elements of murder in the second degree are included in the statutory definition of murder in the first degree. It is inconceivable that a person could premeditate the killing of another and deliberately proceed to consummate the act without purposely and maliciously committing the murder. While the intent to kill or to do the wrongful act which results in the death is an essential element in the second degree of murder, it is not necessary to specifically allege or to prove these elements. They are included in the charge of murder in the first degree. As to the proof, the intent may be inferred from the accomplished fact of the killing and the manner in which it was done. It is said in volume 1, Bouvier's Law Dictionary: "When, by the common law or by the provision of a statute, a particular intention is essential to an offense, or a criminal act is attempted, but not accomplished, and the evil intent can only be punished, it is necessary to allege the intent with distinctness and precision, and to support the allegations with proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act, with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention, will be presumed and not alleged, or, if alleged, it is a mere formal averment which need not be proved"-citing Bigelow, C. J., in Commonwealth v. Hersey, 2 Allen (Mass.) 180; Chitty Crim. Law, 233; 6 East, 474; Commonwealth v. Webster, 5 Cush. (Mass.) 305, 52 Am. Dec. 711; Evans v. United States, 153 U. S. 608, 14 Sup. Ct. 939, 38 L. Ed. 839; State v. Smith, 93 N. C. 516. Every case in this court, and there have been many, in which a conviction of murder in the second degree has been sustained, although the crime charged was murder in the first degree, and did not specifically charge that the "murder" was "committed purposely and maliciously," is, in effect, an affirmation of the doctrine announced in Bouvier, supra. The language used in State v. Young, 55 Kan. 349, 40 Pac. 659, seems to support the contention of the appellant, but a reading of the case shows that the question here involved was not in that case. The information did not formally charge murder in either degree and charged that the act which caused the death was done with a specific intent to consummate a wrongful act which was not denounced as a felony, nor as any crime by any valid statute of the state. The information in this case sufficiently charges the crime of murder in the second degree as well as in the first degree. State v. Kirby, 62 Kan. 436, 63 Pac. 752; State v. Terreso, 56 Kan. 128, 42 Pac. 354; Craft v. State, 3 Kan. 450; State v. Smith, 38 Kan. 194, 16 Pac. 254. The foregoing remarks apply, also, in a measure to the instructions to which objection is made, and to the alleged variance between the allegations of the information and the proof. It is contended that the court erred in its instruction No. 22, relating to conspiracy to commit crime. There was evidence tending to show a conspiracy between the defendant, Keleher, and Roberts, who did the killing, to steal Wetzel's money from a barn where it was supposed to be hidden. There was also evidence of a conspiracy to get Wetzel to take a trip with them on the cars and rob him of the money. of the money. After instructing correctly as to the conspiracy to rob, the court says: "So, if, however, you do not so find, but. do find by the evidence beyond a reasonable doubt that they conspired to steal Wetzel's money, but not to take it from his person by violence, and that in furtherance of such common design and in carrying out such common purpose Roberts killed Wetzel, the defendant, if absent, would be guilty only in case such killing was the natural and probable outcome of the execution of such common design." This portion of the instruction is a complete proposition in itself, and is not modified by any other portion of this instruction or by any other instruction, and it is erroneous. The killing of a man, at a place far removed from where his money was supposed to be hidden, by one of two conspirators who planned to steal his money, in his absence, from a barn where it was supposed to be hidden, cannot be the natural and probable outcome of the conspiracy to steal. It is true that, when one has the consent of his own mind to obtain money by stealing it, it is but a step further to obtain it by robbery, and but another step to obtain it by murder. But the law does not impose upon a conspirator who joins only in the plan to steal any responsibility for these descending steps of his associate. The conspirator is responsible only for such acts of his associate as are the natural and probable outcome of their agreement, as the court elsewhere well told the jury. It was error for the court to instruct that they might determine whether the killing was the natural and probable outcome of the conspiracy to steal when there was noevidence to justify such conclusion, but, on the other hand, all of the evidence and circumstances connected with the killing show a complete abandonment of this plan, which involved not even an assault, much less a murder, and the adoption of another and independent plan to obtain the money. State v. Furney, 41 Kan. 115, 21 Pac. 213, 13 Am. St. Rep. 262. We have examined all the instructions, and find that otherwise they fairly presented the law applicable to the case. While from their evidence as it appears in the record we might conclude differently than did the court as to the qualifications of some of the jurors, we are not in an equal position to determine this question, and cannot say that the record shows error in overruling the challenges for cause, or in not considering, as sufficient grounds for a new trial, the remarks attributed to certain of the jurors out of court. The only remaining question which we consider it necessary to discuss is the overruling of the appellant's amended motion for a new trial. On the trial of the appellant, who had been arrested and charged with the murder on the strength of a confession made by Leland Roberts, who at all times admitted that he alone dealt the blows which caused the death of Wetzel, Roberts was the only witness who testified to any conspiracy between himself and Keleher to obtain Wetzel's money in any manner, the only witness to testify to the presence of Keleher at the time of the killing, or in any way to connect Keleher therewith. There were other witnesses who testified to the association of Keleher with Roberts and Wetzel shortly before the killing, and there were witnesses whose evidence tended to establish an alibi for Keleher at the time of the killing of Wetzel. At the time Roberts testified to an agreement between himself and Keleher to get Wetzel to go with them and steal a ride in box cars to Kansas City, and on the way to get Wetzel drunk or to catch him asleep and take his money from his person; that in pursuance of the latter plan they had obtained Wetzel's consent to go with them, and the three had started down the railroad track from the depot, in Hill City, intending to board a freight train which was about due to arrive from the west; that as they were walking along the railroad track Roberts picked up a singletree of a wagon, and, Wetzel having sat down for some purpose. Roberts struck him repeated blows on the head with the singletree and killed him; that Keleher took no part in the killing, but was present and immediately thereafter helped dispose of the body, and received part of the money taken from the clothing upon it. On this evidence, after the instructions had been given and arguments of counsel had been made, the case was submitted to the jury and a verdict of guilty of murder in the second degree was returned. Thereafter, in due time, motions in arrest of judgment and for a new trial were filed by the defendant, and pending the hearing of the decision of the Potion for a new trial Leland Roberts was arraigned on the information for the murder of Wetzel, which had been filed against him, and pleaded guilty of murder in the second degree, which plea was accepted by the court on the consent of the county attorney. Thereupon Roberts was asked by the court if he had any legal excuse to offer why judgment should not be pronounced against him. In reply he said he wished to make a statement, and, having the permission of the court so to do, he proceeded to detail the circumstances of the murder and declared in substance that Keleher had nothing to do with it, that Keleher was not present at the time of the killing, did not aid in disposing of the body, did not receive any of the money, and did not conspire with him, Roberts, to rob Wetzel or to steal his money. Thereafter the attorneys for appellant filed a supplemental motion for a new trial on the ground of newly discovered evidence, and the court granted a hearing thereon and a number of witnesses were orally examined in court. A number of witnesses testified that Roberts had stated to them, in substance, that Keleher had nothing to do with the murder, and Leland Roberts repeated under oath substantially the statements he had made to the court on his arraignment. The record of the action of the court, after the evidence on the motion was concluded, is as follows: "And thereupon, after due consideration, the said motion for a new trial is by the court overruled, the court holding that the evidence is insufficient to prove that the defendant was present at the time and place of the killing of the deceased and participated in the act of killing, but holding that it is sufficient to prove him guilty as accessory before the fact, and as a conspirator under the law. To the ruling of the court in sustaining the verdict, and in overruling the motion for a new trial, the defendant at the time duly excepted." The instructions permitted the jury to find Keleher guilty, (1) if they found he was present at the killing and aided or abetted Roberts therein; (2) if they found that Keleher and Roberts conspired to rob Wetzel before the killing; (3) if they found that Keleher and Roberts, before the killing, conspired to steal Wetzel's money from the barn, and that the murder of Wetzel was the natural and probable result of this conspiracy. We have found as a proposition of law that the murder could not be the natural or probable result of the conspiracy to steal the money from the barn. In the absence of any connecting link, the murder could not result from such an agreement. It involves a new and independent plan for getting the money. There remain, then, two facts only upon the finding of which against the appellant he should have been held responsible and found guilty of the murder: (1) The conspiracy to rob; (2) the presence of the appellant, aiding and abetting in the murder. The court, after hearing the evidence on the motion for a new trial, finds that the evidence does not sufficiently establish the fact that appellant was present, aiding and abetting, at the time of the murder, but is sufficient to prove him guilty as a conspirator. It cannot be said which or how many of the three facts the jury found against the defendant which the court submitted to them as severally the basis of a conviction, and it cannot be said which of the two conspiracies the court, after hearing the evidence on the motion for a new trial, found to be sufficiently proven by the evidence. Neither can it be said the jury would have agreed with court if it had heard the evidence of Roberts on the motion. The jury, it may be presumed, was justified in finding the appellant guilty of murder upon two of the three basic questions of fact which the court properly submitted to it, although upon the uncorroborated testimony of a confessed murderer, but they might have hesitated before saying that guilt was established beyond a reasonable doubt when the self-confessed murderer became a selfconfessed perjurer, and swore that the evidence upon which the jury had relied and had found appellant guilty was false in toto. Except when an accused pleads guilty of the crime charged, it is the theory of the law that he can be punished only upon the unanimous verdict of 12 qualified jurors and the approval of the verdict by the trial court. Can it be said that this verdict was approved by the court? We have found that the court misdirected the jury in a material matter of law, viz., the conspiracy to steal, and this is a statutory ground for granting a new trial. We shall not, however, rest our decision on this alone. "Newly discovered evidence, material for the party applying, which could not, with reasonable diligence, have been discovered and produced at the trial," is not among the grounds for a new trial authorized by the statute relating to criminal procedure (section 5713, Gen. St. 1901), although it is a provision of the Civil Code (Gen. St. 1901, § 4754). Section 5652, however, seems to extend this provision to criminal procedure. State v. Bogue, 52 Kan. 79, 34 Pac. 410. From the evidence adduced on the hearing of the motion and all that had occurred in the presence of the court it seems to have been conclusively established (1) that the evidence was newly discovered, (2) that it was very material to the party applying, and (3) that no amount of diligence would have led to its discovery or enabled him to produce it at the trial. Indeed, almost the whole of this long trial was devoted to the discovery of what this one witness knewthe facts about the murder of Charles Wetzel. He is perhaps the only person in the whole world who knows the truth. After he had been examined and cross-examined at great length, after the court had instructed the jury with great care and general accuracy, and eminent counsel, with nice acumen, had argued to the jury what the circumstances had disclosed and what they should believe to be the truth, after the jury had re-examined all that had passed before them, and had pronounced their verdict of guilty, after the trial was all finished-this witness, with his great burden of guilty knowledge, voluntarily, as he said, came back, and, in the presence of the court where he had reiterated his story, swore that it was all a fabrication and was false, that the verdict was false, and that an innocent young man had been wrongfully convicted of the horrible crime of murdering a young associate for money. Two motives are assigned by the witness for giving the testimony which he finally says is false, and they are such as might actuate one so depraved. When he faced his own conviction, he claims to have had an awakening of his dormant sense of justice and to have become possessed of a desire to undo the great wrong he swears he has committed to an innocent man. If his latter statement be true the appellant should be acquitted; if the former be true, he should be condemned. To determine the credibility of witnesses and all the facts including the final conclusion of guilt or innocence is the especial province of a jury, and not of a court. The court evidently believed a part of the testimony given by Roberts on the motion for a new trial, which was in direct contradiction of his evidence on the trial. If the jury had heard this additional testimony, they might have determined its credibility the same as did the court or they might have believed the entire statement made by Roberts at the last and have entirely discarded his story told on the trial. A jury should have the opportunity to hear all of this testimony and to determine what should be believed. "Where the probable effect of the newly discovered evidence is doubtful or impossible to determine, a new trial should be granted." Dennis v. State, 103 Ind. 142, 2 N. E. 349; 14 Encyc. Pl. & Pr. 842; Lindley v. State, 11 Tex. App. 283. The newly discovered evidence in this case is not cumulative and is not simply for impeachment. If believed, it entirely obliterates the evidence of the witness upon which the conviction evidently was based. The judgment is reversed, and a new trial is granted. All the Justices concur. (74 Kan. 627) STATE v. SCHMIDT (two cases). SAME v. 1. JURY-SELECTION-AUTHORITY OF JUDge. Where it is made to appear to the court that the township trustees and mayors of cities have failed to make lists of persons to serve as jurors, or where the lists furnished by them to the county clerk, or the names taken from the lists and deposited in the jury box, have been so returned or deposited as to vitiate the panel, the duty devolves upon the district judge to select a sufficient number of jurors for the term. 2. SAME REPEAL OF STATUTE. Chapter 117, p. 158, Laws 1886, was not repealed by the enactment of chapter 236, p. 427, Laws 1901. 3. SAME-CHALLENGES. The mere fact that the district judge in making such selection fails to select jurors from all the cities and townships of the county is not a good ground of challenge to the array. (Syllabus by the Court.) Appeals from District Court, Cowley County; C. L. Swarts, Judge. Arthur Schmidt, Frank Thorp, Henry Schmidt, and Chod Thomas were each convicted of a violation of the liquor law, and appeal. Affirmed. G. H. Buckman, Jackson & Noble, and Torrance & Bloss, for appellants. C. C. Coleman, F. S. Jackson, and John S. Dawson, for the State. JOHNSTON, C. J. The defendants were each convicted of unlawful sales of intoxicating liquors, and, as all the convictions rest upon similar testimony, and as like rulings and exceptions were made in each, all the cases were submitted together, and may be disposed of in a single consideration. The first contention is that the trial court erred in overruling a challenge to the array of jurors, and denying to the defendants a trial by a jury drawn from the jury box. The defendants were tried at the November, 1905, term of the court. In the early part of that term there was a challenge to the array of regular jurors in attendance for the term, and the court upon consideration of the challenge determined that the lists of jurors furnished by the township trustees and mayors of the cities of the county, and the names taken from the lists deposited in the jury box, had been so returned and deposited as to vitiate any and ail panels drawn from that box. The court, having determined that there was no legal panel of jurors, found that the attendance of jurors for the term was necessary for the transaction of the business of the court, and, upon an order of the court, the judge selected 37 qualified jurors to serve as regular jurors for the November term of the court. Later in the term, and when jurors so selected were called for the trial of defendants, they interposed a challenge to the validity of the panel, which was overruled, and they now complain because the court refused them a trial by a jury drawn from the jury box. The jurors were selected in substantial compliance with the governing statutes. It is provided: "That whenever it shall be made to appear to the court that the township trustees and mayors of cities, as provided for in the act to which this is an amendment, have failed to make the lists from the assessment rolls of the previous year, or that from any other cause the lists furnished by them to the county clerk or the names taken therefrom and deposited in the jury box have been so returned or deposited as to vitiate a panel drawn therefrom, it shall be the duty of the judge of such court to forthwith select a sufficient number of jurors for the term, and cause a venire to issue for the same, naming the jurors so selected therein." Laws 1886, p. 158, c. 117, § 1; Gen. St. 1901, § 3822. Other sections of that act provide for the furnishing of new lists of persons to serve as jurors during subsequent terms for the ensuing year. Laws 1886, p. 158, c. 117, §§ 2-4; Gen. St. 1901. §§ 3823-3825. It is contended, however, that these provisions are not now in force, but were repealed by a later act. Laws 1901, p. 427, c. 236: Gen. St. 1901, § 3816. There was no express repeal of the earlier act, and no reason has been given why the later act should be regarded as inconsistent with the earlier one and as an implied repeal of it. While both acts relate to the general subject of selecting jurors, they provide for different contingencies, and there is ample scope for the operation of each. The act of 1901, as will be observed, provides for completing a panel to try a particular cause, while the act of 1886 provides for the selection of jurors for the term. One provides for filing up an incomplete panel, and the other provides an entire panel as a substitute for one vitiated because of the error or misconduct of the local officers who furnished the lists of names for deposit in the jury box. The cited case of State v. Edwards, 64 Kan. 455, 67 Pac. 834, related to the filling out of an existing panel, and has no application to a situation where the court finds that the steps taken in placing names in a jury box are such as to entirely vitiate the panel. It is further said that the court should have quashed the panel in these cases because no jurors were chosen by the judge from the cities of Winfield or Arkansas City. This is substantially the same objection which was made, and held to be insufficient to vitiate a panel, in State v. Frazier, 54 Kan. 719, 39 Pac. 819. It does not appear how it happened that these cities were overlooked when the selection of jurors was made by the judge, nor is there anything to show that the omission was arbitrary or intentional. Neither does it appear that a fair jury was not obtained, nor that the defendants suffered any prejudice, because jurors were not selected from every township and city in the county. The Frazier Case was sufficient authority for overruling the challenge to the array. There is complaint that the court received in evidence a certain plea in bar which was filed by defendant in another case in which he pleaded guilty to the charge of unlawfully maintaining a place where intoxicating liquors were kept for use and sale as a beverage. That place, it appears, was the same one in which the sales involved herein were alleged to have been made. The defendants treat this as a confession, and insist that the preliminary showing necessary to the introduction of a confession was not made. It was not introduced, however, as a confession that the defendant was guilty of an offense charged in this case, nor was it so treated by the court. It was only the admission of the incidental fact that he had maintained a clubhouse and a nuisance about the time of the unlawful sales in question; the same place in which the alleged sales were made. The state had averred and were endeavoring to prove that the unlawful sales charged against defend ant were made at a particular place. Ar admission by the defendant that he had been conducting such unlawful business at that place at about that time was admissible as tending, in some degree, to prove the unlawful sales. An oral admission by the defendant to a neighbor that he was carrying on the unlawful business near the time of the unlawful sales would have been admitted probably without question, and the fact that the admission was reduced to writing does not change its character as proof or weaken its force. The court in its instructions carefully limited the application of the testimony, leaving no ground for complaint. As the information was sworn to positively, and no question of jurisdiction arises, it is not now material what particular offenses were in the mind of the prosecutor when he verified the information. The charge of the court, although criticised, appears to have fairly submitted the issues in the case to the jury, and no error is seen in any of the rulings on instructions. Judgment affirmed. All the Justices concurring. (74 Kan. 874) STATE v. McCARLEY. (Supreme Court of Kansas. Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.) INJUNCTION VIOLATION CONTEMPT - PROCEEDINGS. Where an attachment against one was issued on an affidavit, charging a violation of an injunction by a sale of liquors at a certain time to a certain person. there was no prejudicial error in the action of the court in inquiring into other and further violations of the injunction. where the evidence clearly established such repeated violations, and the hearing was continued for several weeks so that defendant was informed of the nature of the charge. Appeal from District Court, Allen County; Oscar Foust, Judge. Cliff McCarley was convicted of contempt of court in the violation of an injunction, and he appeals. Affirmed. Chris Ritter, for appellant. C. C. Coleman and Burton E. Clifford, for the State. |