These appellants were put to trial on an information charging murder in the first degree, and were convicted of murder in the second degree. The only issue of fact was upon the defense of alibi. The point mainly relied upon for reversal is that the court erred in submitting the facts as capable of sustaining a verdict of murder in the second degree.
The facts are sufficiently disclosed in an accompanying dissenting opinion.
The first count of the information charged that appellants, while armed, made an assault on the deceased with intent to rob him of money, and that, while so engaged, they took him into their hands, tied and bound him, and placed him near and onto a fire, and set fire to his clothing and body, thereby inflicting mortal burns from which he died.
The second count alleged the same acts, but omitted the allegations that appellants were armed and that their assault was made with intent to rob.
The first count was evidently meant to charge “a murder committed in the perpetration of or attempt to perpetrate any felony,” by statute, murder in the first degree. Oomp. St. 1929, § 35-304; State v. Welch, 37 N. M. 549, 25 P.(2d) 211. At the close of the case the court put the state to an election. It stood on the second count. The first thus went out of the case and cannot aid the verdict.
The second count was no doubt meant to charge “murder * * * perpetrated by means of * * * torture,” also by statute murder in the first degree. Oomp. St. 1929, § 35-304. Whether it would have sustained the theory of “murder * * * perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life,” is a question we need not determine.
*47The state made a ease which would have sustained a conviction of murder in the first degree on the theory of the first count. But we cannot convict appellants of a crime of which, because of the withdrawal of that count, the jury was not at liberty to convict them, and of course did not. The verdict must stand the test of the second count.
The verdict must also stand the test of the instructions, the unquestionable law of the case for the jury. That eliminates the possible theory of “murder * * * perpetrated by any act greatly dangerous to the lives of others,” etc. The jury, entirely uninstructed on this theory, could have based no verdict upon it.
The jury was so instructed that the verdict represents this: That the homicide was effected by making an assault upon the deceased, tying and binding him and placing him at, near, and onto a fire, inflicting on his body mortal burns of which he died, and that “such killing was unlawfully, feloniously, wilfully and premeditatedly done by the said Roy Reed and. Leonard Beck, with malice aforethought on the part of the said Roy Reed and Leonard Beck then and there to effect the death of the said Lee Marshall”; but that such killing was not done “from a deliberate and premeditated design” to effect his death; that is to say, that if, from malice aforethought to effect death, one shall kill another by means of torture, his crime is murder in the second degree if the jury consider the killing not to have been -done with deliberation.
A mere reading of the statute demonstrates that this is a misconception: “All murder which shall be perpetrated by means of * * * torture * * * shall be deemed murder in the first degree.” Comp. St. 1929, § 35-304.
It is firmly established that it is error to refuse to instruct on a degree of homicide of which there is substantial evidence and error to submit a degree of homicide of which there is no evidence. State v. Hunt, 30 N. M. 273, 231 P. 703.
Very recently we have held it error to leave it to the jury to determine whether a homicide committed in the perpetration of a felony is murder of the first or of the second degree. State v. Welch, 37 N. M. 549, 25 P. (2d) 211.
We should perhaps not fail to mention a grave doubt whether any conviction could have been sustained under these instructions. A purpose to rob the deceased of his money or to extort it is easily to be found in the evidence. The inference of a purpose to kill him is not so readily to be drawn, if at all. By the instructions the jury, if it was to convict at all, was required to find the presence of malice aforethought to effect the death of the deceased. The evidence strongly suggests murder committed in perpetrating, or attempting to perpetrate, a felony. It possibly suggests murder perpetrated by acts greatly dangerous to the life of the deceased, and indicating on the part of appellants depraved minds, regardless of human life. But these theories did not find *48their way to the jury. This doubt we do not pursue; it not being the question presented.
Thqre was evidence that appellants had been drinking before they commenced, and while they were engaged in, their inexpressibly cruel treatment of the deceased. This is the single matter pointed to by the state in justification of the submission of murder in the second degree. This evidence, it is urged, would have warranted the jury in finding appellants incapable of that deliberation essential to murder in the first degree. Cf. State v. Brigance, 31 N. M. 436, 246 P. 897.
Passing the question whether this doctrine is applicable to murder by torture, it is plain that the point is without merit. Intoxication could have had nothing to do with the verdict. The defense did not invoke it to avoid the extreme penalty. The state did not invoke it as a safeguard against acquittal. The judge did not submit or mention it. If the jury took it into consideration, it did so improperly and without guidance as to its legal effect.
In the decision of this case we are faced with the alternatives of sustaining the present verdict or of discharging the appellants. They have been tried and acquitted of the crime of which they may be guilty, murder in the first degree. The Bill of Rights forbids that they be put in jeopardy again for that offense. N. M. Const, art. 2, § 15. It would be futile, of course, to put them to trial again for an offense of which the evidence absolves them.
So it is that we have been industrious in the search for some means or theory which the Attorney General may have overlooked to warrant sustaining this probably just, but unlawful, verdict.
In our conferences there has once again been advanced the contention that the error in the instructions and in the verdict is nonprejudicial and so not reversible; that men guilty of murder in the first degree are fortunate and have nothing of which to complain if adjudged guilty of a lesser offense and subjected to a lesser punishment. That contention has been fully considered and definitely rejected here in recent years. State v. Pruett, 27 N. M. 576, 203 P. 840, 846, 21 A. L. R. 579. There this court undertook to set it at rest “on account of the importance of the question, and also on account of the constant recurrence of the question before the court.” See, also, State v. Trujillo, 27 N. M. 594, 203 P. 846, State v. Hunt, 30 N. M. 273, 231 P. 703.
It is needless to go over the ground again. In deciding as it did, this court was fully mindful of the unfortunate consequences which confront us here. Every argument that supports the opposite doctrine was weighed. If we were doubtful of the wisdom of the decision, we should still adhere to it. We consider it not only the part Of wisdom but a high duty here to pursue a consistent course. We shall not add to the confusion now existing in the law of homicide by reopening the question.
We may pause to say that it is not certain that, if we should overrule State v. Pruett, *49supra, It would end this appeal. It might still leave open, as a ground for rehearing, the question above-suggested, whether in this particular case, under the instructions given, in view of the evidence, a conviction of murder in the first degree could have been upheld. If it could not, the whole point is without merit.
An opinion has also found lodgment that the doctrine of the Pruett Case may be upheld where, as there, the conviction was of involuntary manslaughter, all the evidence showing murder; or where, as in the Trujillo Case, the conviction was of voluntary manslaughter; and that we may still refuse to follow it in this case where the conviction is of second degree murder.
An arbitrary distinction of this kind could be easily made. To support it on principle seems impossible. There is plenty of argument for a change of policy, but none that we are able to discern for the distinction. To adopt it would be merely to accept the reasons and authorities heretofore weighed and found wanting; to stand by the Pruett Case as precedent, while rejecting it in principle.
After all, it is in effect urged, murder is but “the unlawful killing of a human being, with malice aforethought.” Comp. St. 1929, § 35-301. Murder in the first degree is that form of murder in which there is present the deliberation which constitutes “intensified or first degree malice.” State v. Smith, 26 N. M. 482, 194 P. 869, 872. In every murder there must be present a murder in the second degree, since no one but the jury may say whether the malice was ordinary malice aforethought or “intensified or first degree malice.” A refusal to find the latter form of malice leaves a residuum of ordinary malice to operate on the case and make it murder in the second degree.
This theory is no doubt sound in so far as it leads to the view that a charge of murder in the first degree “necessarily includes” a charge of murder- in the second degree. We have so held with respect to voluntary manslaughter. State v. Burrus, 38 N. M. 462, 466, 35 P.(2d) 285, 288 (on motion for rehearing),
It is true also that in the ordinary homicide case evidence which will satisfy the requirements of murder in the first degree will sustain a conviction of murder in the second degree; it being within the jury’s province to determine whether the evidence discloses the one kind of malice or the other. That is not to say that the law is indifferent as between the two degrees. We venture to suggest that it is too refined; the distinction serving to hinder administration rather than to aid it. But the distinction is expressed in general terms which the jury is left to apply to the facts as it finds them. In this sense, even from the standpoint of fact, a second degree case is generally included within a first degree case.
But, where the law descends to particulars and prescribes that a murder perpetrated by means of torture is murder in the first degree, and the jury finds that the homicide was thus effected, how can it be said that murder in the second degree is included? If we may judge 'the legislative in*50tent with respect to these special forms of murder by the distinction made plain as to ordinary murder, we may well say that the use of torture is made conclusive of that deliberation which characterizes murder in the first degree. The employment of that means of effecting the homicide deprives the jury of its prerogative of determining whether the murder is of the one degree or of the other. In such a case there can be no compromise. The accused must be guilty in the first degree or not guilty at all. We so considered in State v. Welch, supra, as to murder committed in the perpetration of a felony. In this respect the eases are not distinguishable. In the one case the collateral unlawful intent supplies the malice aforethought and the deliberation; in the other, the torture employed supplies the deliberation. Por the same reason that the Welch jury could not lawfully hold a homicide committed while perpetrating a felony to be a murder without deliberation, this jury could not lawfully deny the deliberation in a murder committed by means of torture. In both cases the court tied the jury to the single theory of fact and permitted it to ignore the consequences which the statute attaches.
And, finally, there has not been lacking the suggestion that the Legislature has reversed the policy or principle of the Pruett Case. Since 1929 it has been provided by statute that “ * * * the jury trying the cause may find the defendant or defendants guilty of any offense the commission of which is necessarily included in that with which he or they are charged.” Comp. St. 1929, § 35-4409.
That this authorizes the court to submit, and the jury to convict of, a lesser degree of homicide of the commission of which there is evidence, we have just decided. State v. Burrus, supra. Does it go further and authorize the jury to convict of an offense of which there is no evidence? According to the better reason and authority, we consider that the answer should be negative. See the decisions cited in Bandy v. State, 102 Ohio St. 384, 131 N. E. 499, 21 A. L. R. 594, and particularly Sparf v. United States, 156 U. S. 51, 15 S. Ct. 273, 39 L. Ed. 343, 10 Am. Cr. Rep. 168.
Oklahoma is one of the jurisdictions “committed to the doctrine that no prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence.” Wilmoth v. State, 20 Okl. Cr. 453, 203 P. 1055, 1057, 21 A. L. R. 590. Its statutory provision, similar to ours just quoted, has probably influenced its courts in so holding. Cf. Irby v. State, 18 Okl. Cr. 671, 197 P. 526. A familiarity with State v. Taylor, 33 N. M. 35, 261 P. 808, 809, and State v. Burrus, supra, might suggest that we have adopted the Oklahoma statute, and with it the construction given it by the Oklahoma courts of last resort.
It is no doubt true in a sense that we did adopt the Oklahoma statute, and that we did intend some of the results it had been held to have in that state. We did not adopt it verbatim, however, nor in toto, as will be disclosed by comparing- our Comp. St. 1929 § 35-4409 (proviso), with the Oklahoma pro1 vision as quoted in the Taylor decision. Nor *51did we place it in the same setting. As mentioned in the Taylor Case, it is in Oklahoma a “distinct statutory provision”; that is, distinct from the act on indictments and in-formations which we were there considering, and which we found to have been adopted from Oklahoma, and as to 'the construction of which we held ourselves controlled by Oklahoma decisions. In fact, it appears in the law of verdicts (Comp. St. Okl. 1921, § 2740), not in the law of indictments and informations (Id. § 2547 et seq.). Here it is a proviso to a section concerned only with indictments and informations; a section which had at least caused apprehension that there could be no conviction of a degree of homicide not specially pleaded in a separate count. Its purpose, as we considered in State v. Burrus, supra, was to preclude the necessity of separately pleading each degree of homicide, and, under a single charge of murder in the first degree, for instance, to admit proof and conviction of a lesser degree of homicide. Moreover, we adopted it under a title which gave no notice or intimation of a change in the policy or doctrine here in question. The act (Laws 1929, c. 481 is entitled. “An Act Amending Section 9, Chapter 145 of the Session Laws of 1925, Relating to the Forms of Indictments and Informations.”
To summarize the matter: In 1925 our Legislature saw fit to adopt Oklahoma’s statute on criminal pleading. Re-examining the matter in 1929, in the light of State v. Taylor, supra, it found reason to fear that section 9 of the borrowed act (Laws 1925, c. 145) reversed the former policy as to proof of conviction of a lesser degree of homicide under a charge of a greater. Informed by the Taylor decision that the “rigor” of the Oklahoma statute was modified in that respect by the “distinct statutory provision,” the Legislature took that provision for the particular purpose it then had in view. It adopted it, not as a distinct provision, with independent meaning as to the power of the jury, but as a proviso to the statute it desired to modify.
Under these circumstances, we do not consider that in adopting the proviso into our law of pleading we adopted the Oklahoma interpretation of the language as a part of its law of verdicts. We consider such result to have been absent from the legislative mind and such interpretation to be unwarranted by the context. We do not feel justified in invoking the proviso to effect an unintended reversal of the policy theretofore firmly established and strongly declared by this court.
Impressed as we are that these appellants go unwhippcd of justice, it is not for us to vary the Constitution and laws. We do feel impelled, however, to recur to the opinion we have ventured, that the lawmakers have introduced unnecessary and impractical refinements into the law of homicide. Theoretically, their nice classification of murder into two degrees as enacted in Comp. St. 1929, § 35-301, and expounded in State v. Smith, supra, well satisfies our sense of justice. But the trial of murderers is a practical business. That the distinctions are too subtle for jurors will be evident to all who read the instructions given in any murder case. *52That they are just as baffling to the judges, hundreds of conflicting decisions prove. At the risk of exceeding our duty, we suggest an abolishment of these refinements by legislative repeal. Let “murder” be, as at the common law, “The unlawful killing of a human being, with malice aforethought”; let the jury determine the guilt of the accused, perhaps with power to recommend clemency.; and let the court fit the punishment to the crime proven.
Our conclusion is that the judgment must be reversed, and that the cause must be remanded, with a direction to discharge the appellants.
It is so ordered.
SADLER and ZINN, JJ., concur.