THE PEOPLE, Respondent, v. JOHN H. O'NEIL, Appellant

[No. 20502. In Bank. March 14, 1889.] THE PEOPLE, Respondent, v. JOHN H. O’NEIL, Appellant. Criminal Law—Homicide — Verdict. —The failure of a verdict of “ guilty as charged,” under an information for murder, to specify the degree of murder, vitiates the verdict. Appeal from a judgment of the Superior Court of Contra Costa County, and from an order refusing a new trial. The facts are stated in the opinion of the court. Joseph H. Budd, James II. Budd, and II. G. Levynshy, for Appellant. Attorney-General Johnson, for Respondent. [MAJORITY — The Court.] The Court. Appellant was tried upon an information which alleged that he feloniously, unlawfully, and with malice aforethought, killed and murdered one Philip Stump. The jury returned a verdict in these words: “We, the jury, decide the defendant, John H. O’Neil, guilty as charged, the penalty to be imprisonment for life.” The code provides that “ whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” It has been uniformly held that a failure to specify the degree of murder under that section vitiates the verdict. (People v. Campbell, 40 Cal. 129.) The attorney-general confesses error. Judgment and order reversed, and cause remanded, for a new trial.