to uphold the validity of marriages: Matthews v. McDade, 72 Ala. 377; Long v. Parmer, 81 Id. 384, 388, and cases cited; Bozeman v. Bozeman, 82 Id. 389; 1 Bishop on Marriage and Divorce, sec. 13; McCarty v. McCarty, 2 Strob. 6; 47 Am. Dec. 565; Carroll v. Carroll, 20 Tex. 731; Dickey v. Vann, 81 Ala. 425.

9. In addition to this, the complainant relied upon the record of a divorce suit obtained against Dr. Wilson by his first wife, in the state of Georgia, in the year 1859. Whatever force there might otherwise be in the objection that the record. of the proceedings shows no service on the defendant, and other like objections, the presumption, after the lapse of twenty years, is in favor of every judicial tribunal acting within its jurisdiction, and that all parties concerned had due notice of its proceedings: 1 Greenl. Ev., 14th ed., sec. 19.

10. It is said that the laws of Georgia prohibited the guilty party from marrying again, and for this reason the marriage of Dr. Wilson in Alabama was illegal. But it is settled in this state that such a prohibition had no extraterritorial operation, and that, notwithstanding the prohibition, the guilty party would be competent to marry in the state of his or her residence: Fuller v. Fuller, 40 Ala. 501; Reed v. Hudson, 13 Id. 570. The act of the general assembly of Alabama, approved February, 1861, "for the relief of Robert S. Wilson," conferred this right, by declaring him to be "relieved of all the penalties and disabilities which by law attach to persons from or against whom a divorce had been ordained in any state." The disability of contracting marriage in Alabama, if it existed, was thus expressly removed by a law, which does not seem to have been obnoxious to any constitutional objection.

11. The identity of name in this act with that of the complainant's father, who was then a resident of Montgomery County, Alabama, is prima facie evidence of identity of person. Such is the rule, unless a name is shown to be very common in a country, or unless there be other facts which throw confusion on the supposed identity: Wharton on Evidence, sec. 701.

The other points urged are not, in our judgment, well taken. The decree of the chancellor, under these views, is erroneous, and will be reversed, and the cause remanded.

EFFECT OF DECREE OF Divorce and OF PROHIBITION TO MARRY: See note to Boykin v. Rain. 65 Am. Dec. 349.

CASES

IN THE

SUPREME COURT

OF

NEVADA.

STATE v. LINDSEY.

[19 NEVADA, 47.]

JURY MAY FIND PRISONER GUILTY OF MURDER IN SECOND DEGREE for a homicide committed by means of poison, for the reason that the question of degree is to be settled by them under the statute of Nevada, which provides that "all murder which shall be perpetrated by means of poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . . shall be deemned murder of the first degree, and all other kinds of murder shall be deemed murder of the sec ond degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree." JURY HAVE POWER TO FIX CRIME OF MURDER IN SECOND DEGREE when it ought, under the law and the facts, to be fixed in the first degree.

IF JURY FIX CRIME OF MURDER IN SECOND DEGREE, in a case where the law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which the law will not take any cognizance, and of which he ought not to complain. INSTRUCTIONS ARE NOT ERRONEOUS OR MISLEADING when they are to the effect that if poison was prepared by the prisoner with suicidal intent, and was negligently exposed in such a place and manner as would likely to be unconsciously or without negligence taken by the decedent, the prisoner would be "liable for the consequences," the court in the same connection stating correctly what the consequences would be.

INDICTMENT for murder, alleged to have been committed by administering poison. The jury found the prisoner guilty of murder in the second degree. The opinion states the case with the exception of certain instructions, which are as follows: "The jury are instructed that if a person exposes or places poison in such a position that it is likely to be uncon

csiously or non-negligently taken by another person, either as food or drink, he or she is liable for the consequences. And you are further instructed that if a person, in attempting to commit suicide, unlawfully kills another, such person is guilty of manslaughter. If you believe, from the evidence in this case, beyond all reasonable doubt, that the defendant, Lizzie Lindsey, on the second day of December, A. D. 1883, purchased a poisonous substance, to wit, strychnine, with intent to take her own life; that she took it to the house where she and deceased were residing; that she put the strychnine so purchased by her into a glass of whisky; that she left said glass containing said strychnine and whisky upon a table in deceased's room, which deceased occupied, and had the right to occupy, and in such exposed situation that it was likely to attract, and did attract, deceased's attention; and if you further believe, from the evidence, beyond all reasonable doubt, that the deceased, Robert Pitcher, rightfully went into the room in which the glass containing the whisky and strychnine was, and that the said Pitcher, without any fault on his part, took, drank, and swallowed down the contents of said glass, not knowing at the time he so drank it that it contained any poison, and that the drinking of the strychnine contained in said glass caused said Pitcher's death, and that he died . . from the effects of drinking said poison, then I instruct you that the defendant is guilty of manslaughter, and you should so find."

R. M. Clarke, for the appellant.

W. H. Davenport, attorney-general, and J. D. Torreyson, district attorney, for the state.

By Court, HAWLEY, J. Appellant was indicted for the crime of murder, alleged to have been committed by the administering of poison. The jury found her guilty of murder in the second degree.

1. It is argued in her behalf that the verdict is a verdict of acquittal; that the crime alleged in the indictment was murder in the first degree; that there is no such crime under our statute as murder in the second degree for a homicide committed by means of poison. The statute of this state declares that "all murder which shall be perpetrated by means of poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be com

mitted in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree; but if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly": 1 Comp. Laws, 2323.

Under this statute, there are certain kinds of murder which carry with them conclusive evidence of premeditation, viz., when the killing is perpetrated by means of poison, lying in wait, or torture; or when the homicide is committed in the perpetration, or attempt to perpetrate, any of the felonies enumerated in this statute. In these cases, the question whether the killing was willful, deliberate, and premeditated is answered by the statute in the affirmative, and if the prisoner is guilty of the offense charged, it is murder in the first degree: State v. Hymer, 15 Nev. 50, and authorities cited in appellant's brief. But suppose the jury, in charity for the faults and weakness of the human race, sympathy for the prisoner, or any other mistaken view of the law or the facts, lessens the offense to murder in the second degree, is the prisoner to go free? Does not the case stand precisely upon the same plane as a verdict of murder in the second degree, in any case not enumerated in the statute, where there is a willful, deliberate, and premeditated killing? Is it not as much the duty of the jury in such a case to find the prisoner guilty of murder in the first degree as in the cases specially enumerated in the statute? Suppose the jury in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a reasonable doubt, regardless of all the testimony, and in violation of the well-settled principles of law, should find the prisoner guilty of murder in the second degree, would the prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is it not a fact that juries frequently render just such verdicts, and the result cannot be accounted for upon any theory other than that of a compromise of opinion? Why should such verdicts be allowed to stand? The answer is plain. The reason is, that the statute leaves the question of degree to be settled by the

verdict of the jury. A verdict finding the prisoner guilty of murder, without mentioning the degree, would be a nullity. In State v. Rover, 10 Nev. 388, 21 Am. Rep. 745, this court, referring to the statute which we have quoted, said: "By this statute, murder is divided into first and second degrees, depending upon the particular circumstances in which the crime is committed; and whether it be of the first or second degree is a fact to be specially found from the evidence adduced, without reference to any special facts which may be stated in the indictment. In case of a trial, the jury before whom the trial is had, if they find the defendant guilty, are required to find this fact, and to designate by their verdict whether their guilt be of the first or second degree; and in case of a plea of confession, the court is required to determine this question of fact by the examination of witnesses in open court. It is therefore apparent from the plain and positive provisions of the statute that a verdict which fails to designate the degree of murder of which the jury find the defendant guilty is so fatally defective that no judgment or sentence can be legally pronounced thereon ": 10 Nev. 391, 21 Am. Rep. 746.

A judge should always inform the jury of the degree which the law attaches to murder, by whatever means the crime may have been committed; but in every case it is the province of the jury, if the prisoner is found guilty, to determine and fix the degree by their verdict, and the courts cannot deprive the jury of their right to fix the degree by imperatively instructing them, in a case where the crime was committed by administering poison (or in any other case), that if they find the prisoner guilty they must find him guilty of murder in the first degree: Robbins v. State, 8 Ohio St. 193; Beaudien v. State, 8 Id. 638; Rhodes v. Commonwealth, 48 Pa. St. 398; Lane v. Commonwealth, 59 Id. 375; Shaffner v. Commonwealth, 72 Id. 61, 13 Am. Rep. 649.

Wharton, in discussing the degrees of murder, says: "But however clear may be the distinction between the two degrees, juries not infrequently make use of murder in the second degree as a compromise, when they think murder has been committed, but are unwilling, in consequence of circumstances of mitigation, to expose the defendant to its full penalties": 2 Wharton's Crim. Law, sec. 1112.

In Rhodes v. Commonwealth, 48 Pa. St. 398, the court said: "Under proper instructions from the bench, it is not only the right of the jury to ascertain the degree, but it is the right of