It is too clear for argument or controversy that a legislative act arbitrarily establishing this plain difference in the government of Washoe county from that of the other counties of the state violates the system of uniformity contemplated by the constitution. No elaboration of the proposition can make it plainer than the simple statement of the facts. The draughtsman of the statute, in apparent anticipation of its conflict with the constitution, inserted a clause which may have been intended to give it the appearance of a general law. It is as follows:

"Sec. 10. This act shall apply to all counties in this state in which there were cast more than eleven hundred and fifty votes, and less than thirteen hundred and fifty votes, at the general election held in eighteen hundred and eighty-two in this state.'

Washoe and Esmeralda counties each cast about twelve hundred and fifty votes at the election of 1882, and they are the only counties in the state falling within the classification attempted to be made. It is apparent from an inspection of the statute that even this classification is illusory, because some of the provisions of the act are expressly applicable only to Washoe county and others only to Esmeralda county. The statute does not, therefore, apply uniformly even within the limited classification named. But the basis of classification cannot be sustained. Abstractly considered, the language of the section appears to contemplate a class of counties, but in its practical operation the law is applicable to Washoe and Esmeralda counties only, and can never affect any other county. The legislature could with equal right designate these counties by name, as by the total vote cast at a past election.

A statute somewhat similar in form and purpose was adopted by the legislature of Pennsylvania in the year 1878. It was intended to apply to Crawford county alone, but in order to evade the provisions of the constitution, it was made applicable to all counties of more than sixty thousand inhabitants "in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants situated at a distance from the county seat of more than twenty-seven miles by the usually traveled public road."

The court held the classification improper, and said: "This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or, all counties with a population of over sixty thousand, watered by a certain river or bounded by a certain mountain?" Commonwealth v. Patton, 88 Pa. St., 260.

In the case of Zeigler v. Gladdis, the supreme court of New Jersey had occasion to discuss this subject. That case involved the validity of a law giving the court of common pleas power to grant licenses to keep inns and taverns "in all incorporated cities, having a population not less than four thousand and not exceeding a popu a

tion of six thousand, and in towns having a population less than one thousand in counties of this state, such counties having a population of not less than thirty-seven thousand and not exceeding forty thousand by the census of 1875." The court said: "The uniformity that is thus sought by the constitution, can only be broken by classification of these bodies, political divisions of the state, that are founded on substantial differences such as are not illusory or fraudulent in their character. It is said in Richards v. Hammer, that 'the marks of distinction on which the classification is founded must be such in the nature of things as will, in some reasonable degree at least, account for and justify the restriction of the legislation.' In brief, there must be a true, substantial classification and not a hidden specification. As in the case last cited, the descriptive words, in any city of this state where a board of assessment and revision of taxes now exists,' etc., were found to be only applicable to the cities of Elizabeth and Newark, so in this case the populations given in the act of 1879, on comparison with the census, limit description to the counties of Warren and Hunterdon; and to the city of Lambertville, and the towns of Frenchtown and Clinton, all in the county of Hunterdon. This circumlocution and ostensible classification set forth in the act is, therefore, demonstrated to be aimed at these three small municipalities in the whole state. There is no suggestion of a distinction which will in any reasonable degree, account for and justify this restriction of legislation to these three localities, and the attempt to do, by indirection, what is apparent could not be done by a direct and specific description of the purpose of the act, must fail:" 15 Vroom., 365, see also, Pavonia H. R. R. v. Jersey City, 16 Vroom., 98; Rutgers v. New Brunswick, 13 Vroom., 51; Anderson v. Trenton, 13 Vroom., 486; Centeni v. New Brunswick, 15 Vroom., 58; McConihe v. McMurray, 17 Fla., 269; State v. Stark, 18 Fla., 255; Lake v. Palmer, 18 Fla., 501. order to observe the uniformity required by the constitution, classification, if made, must be based upon reasonable and actual differences, the legislation must be appropriate to the classification and embrace all within the class.

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We are of opinion that if a set of counties be fairly classified in conformity with the views herein expressed, a law embracing them all would be unobjectionable as to uniformity. The requirement that the system of county government shall be uniform, is not considered to import universality to the operation of the law. Such construction would defeat much useful legislation.

The respondent claiming to hold the office of assessor by virtue of an unconstitutional provision, it is ordered that a judgment of ouster be entered against him, with costs.

STATE v. LINDSEY.

Filed February 13, 1885.

MURDER-CONVICTION FOR LESSER OFFENSE, EFFECT OF.-If the jury find a defendant guilty of murder in the second degree in a case where the law and the facts make the crime murder in the first degree, it is an error in favor of the prisoner of which the law will not take cognizance and of which the prisoner cannot complain.

INSTRUCTION MUST BE CONSIDERED AS ENTIRETY-ERKOR IN PART OF INSTRUCTION.-An instruction must be considered together as an entirety, and when so considered, if it states a correct principle of law, and it is evident that the jury could not have been misled, the judgment will not be reversed for error in part of the instruction.

APPEAL from a judgment of the second judicial district court, Ormsby county, convicting the defendant of murder. The opinion states the facts.

R. M. Clarke, for the appellant.

R. M. Davenport, attorney general, and J. D. Torreyson, district attorney, for the respondent.

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 murders which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed 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 is 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. L., 2,323.

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 where the homicide is committed in the perpetration, or attempt to perpetrate any of the felonies enumerated in the statute. În 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 reas onable 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 that 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, 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 the 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.

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 Oh. St., 193; Beaudine v. State, 8 Oh. St., 638; Rhodes v. Com., 48 Penn. St., 398; Lane v. Com., 59 Penn. St., 375; Shaffner v. Com., 72 Penn. St., 61.

Wharton, in discussing the degrees of murder, says: "But, however clear may be the distinction between the two degrees, juries

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not unfrequently 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 Whart. Cr. L., sec. 1,112. In Rhodes v. Commonwealth, supra, 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 the accused to have it ascertained by them. No doubt cases of murder in the first degree have been found in the second, but this must have been anticipated when the statute was framed, and has certainly been observed under its operation, and yet it has remained upon our statute book since 1794, unaltered in this regard. Possibly the very distinction of degrees was invented to relieve such jurymen's consciences as should be found more tender on the subject of capital punishment, than on their proper duties under evidence. Many men have probably been convicted of murder in the second degree, who, really guilty of the higher crime, would have escaped punishment altogether, but for this distinction in degrees so carefully committed by the statute to juries."

The jury have the undoubted power to fix the crime in the second degree when it ought under the law and the facts to be fixed in the first. "We need not speculate about why it was so provided. It is sufficient that it is so written, and we cannot change, alter or depart from it:" Lane v. Commonwealth, supra. Our attention has not been called to any case where a verdict of murder in the second degree has been set aside upon the ground that the testimony was such as to make the crime murder in the first degree. But, on the other hand, the direct question, involved in this case, has been decided adversely to appellant: State v. Dowd, 19 Conn., 387; Lane v. Commonwealth, supra. In the latter case the court said: "It has never yet been decided in Pennsylvania, that a verdict of murder in the second decree might not be given in a case of murder by poison. That it may be given is as unquestionable as the power of the jury is under the act to give it, and impossible for the court to refuse it."

If the jury fix the crime at murder in the 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 the prisoner ought not to complain.

2. Objection is made to certain instructions given by the court, upon the theory that the poison may have been mixed with whisky with the intent on the part of appellant to commit suicide, and was negligently exposed in such a place and manner as would likely "to be unconsciously or non-negligently taken by other persons, either as food or drink," and the jury were told that in such a case the person so leaving the poison would be liable for the consequences and would be "guilty of manslaughter." This objection cannot be sustained.