242 SUPREME COURT OF THE CANAL ZONE.

found. 6. It sets forth the act charged as the offense clearly and distinctly in ordinary and concise language, without repetition and in such manner that any person can know and understand therefrom what is intended; for it alleges that the defendant, stating his name-at a place named, and a time mentioned which was prior to the finding of the indictment, with malice aforethought, assaulted one James Duffy, and did cut and stab the said James Duffy, giving him a mortal wound of which he afterwards died on the same day, and- therefore within a year and a day from the time when the mortal thrust was received, which is all that is necessary to constitute the offense of murder, and sufficiently identifies the act to guard the defendant against a second prosecution, and, as provided in the seventh and last subdivision of the section in question, states the same with sufficient certainty to enable the court to pronounce a judgment.
The first question to determine is, does the fa,-t that the Prosecuting Attorney alleged that the murder was committed with malice aforethought make it murder in the first degree, notwithstanding modifications thereafter contained in the information?
The Canal Zone code ref erred to defines this offense as follows: Murder is the unlawful killing of a human being with malice aforethought.
The question naturally suggests itself, does this definition of murder mean murder in the first degree only or does it mean murder in the first and second degrees? Following close on this we have section 148 which reads as follows:
Murder which is perpetrated by means of poisoning, lying in wait., etc., is murder in the first degree, and all other kinds of murders are in the second degree.
In other words, according to the code, and indeed this is common law learning, murder, both in the first and second degrees,, contains much of the essential element of malice aforethought. It follows, therefore, that murder committed in a certain way and hinder certain circumstances with malice aforethought is murder in the first degree and that murder committed in a certain other way and under certain other circumstances with malice aforethought is murder in the Second degree. The allegation made in the beginning of the information of malice aforethought wxotld he sufficient to charge murder in the first degree if left standing alone; but when all the essential ingredients which are necessary to murder in the first degree are specifically negatived, then it either becomes murder in the second degree or the information is valueless. The question recurs, can an information be filed for murder in the second degree?. This was argued extensively at the hearing and the counsel for the defendant admitted that under certain circum-

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