APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
MR. JUSTICE HARLAN delivered the opinion of the court.
The appellant, August Bergemann, was convicted in the Court of Oyer and Terminer of Morris County, New Jersey, of the crime of murder in the first degree under an indictment, charging that, on a day and within the county named, he "did wilfully, feloniously, and of his malice aforethought kill and murder" one Julius Bergemann, "contrary to the form of the
statute in such case made and provided, and against the peace of the State, the government and dignity of the same."
Being in custody of the sheriff, awaiting the time fixed for his execution under a sentence of death, he presented his petition to the Circuit Court of the United States for the District of New Jersey, representing that he had applied to all the courts of the State having power in the premises to stay his said execution, and for a writ of error to review the judgment of conviction, but his application had been denied; that the indictment against him charged the crime of murder of the second degree, and not murder of the first degree; that he was not informed of the crime of murder of the first degree by any indictment, "as by the Constitution and laws of the land he should have been so charged before he could have been convicted thereof;" that "he ought not to have been sentenced to death, as the said court was without jurisdiction in the premises, and could not have imposed said judgment under said indictment according to the Constitution and law of the land;" and that "the said conviction and the judgment of said court thereon was in violation of the Fourteenth Amendment of the Constitution of the United States in that he was denied the equal protection of the laws, as contemplated by said amendment, and the Sixth Amendment, which requires that the defendant shall be informed of the nature and cause of the accusation made against him."
Upon these grounds he prayed that a writ of habeas corpus be issued. The application for the writ having been denied, he prayed, and was allowed, an appeal pursuant to the statute.
The application for the writ of habeas corpus was properly denied. The Court of Oyer and Terminer had jurisdiction both of the offence charged and of the accused. Rev. Stats. N.J. 1877, 272, § 30.
Whether the indictment sufficiently charged the crime of murder in the first degree was for that court to determine. Caldwell v. Texas, 137 U.S. 692, 698.
Nor is there any ground for the contention that the laws of New Jersey prescribing the form of indictments in cases of murder or manslaughter are inconsistent with the due process
of law, or the equal protection of the laws required by the Fourteenth Amendment of the Constitution of the United States. By the sixty-eighth section of the New Jersey Crimes Act it is provided: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, sodomy, 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." Rev. Stats. N.J. 1877, 239, § 68. And by the forty-fifth section of the Criminal Procedure Act it is provided: "In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which, the death of the decreased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did wilfully, feloniously, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased." Rev. Stats. N.J. 1877, 275, § 45.
In Graves v. State, 45 N.J. Law, 203, it was held that an indictment charging, in a general form, the perpetration of a murder, without indicting which of the two felonies into which that offence was divided by the statute, was sufficient to fulfil the constitutional requirement of informing the defendant of the nature and cause of the accusation against him. The effect of the statute, Chief Justice Beasley said, was neither to add any case to nor take any case from the class of crimes which, at common law, was denominated murder, for every act that was murder at common law was still murder in New Jersey. What the statute effected, he said, was to distribute the offence into two classes for the sake of adjusting the ...