Opinion of the Court. Supreme Court of Pennsylvania, Chief Justice Tilghman said: "Now this act does not define the crime of murder, but refers to it as a known offence; nor so far as it concerns murder in the first degree does it alter the punishment, which was always death. All that it does is to define the different. kinds of murder, which shall be ranked in different classes, and be subject to different punishments. It has not been the practice since the passing of this law, to alter the form of indictments for murder in any respect; and it plainly appears. by the act itself that it was not supposed any alteration would be made. It seems taken for granted that it would not always appear on the face of the indictment of what degree the murder was, because the jury are to ascertain the degree by their verdict, or, in case of confession, the court are to ascertain it by examination of witnesses. But if the indictments were so drawn as plainly to show that the murder was of the first or second degree, all that the jury need do would be to find the prisoner guilty in manner and form as he stands indicted." Yeates and Brackenridge, JJ., concurred in these views, the former observing, p. 188: "Different degrees of guilt exist under the general crime of murder, which is, therefore, arranged under two classes of murder of the first and second degree. The uniform practice since the act was passed has been to lay the offence as at common law." White v. Commonwealth, 6 Binney, 179, 182 (1813). The same principle was announced in Commonwealth v. Flanagan, 7 W. & S. 415, 418. So, in Wicks v. Commonwealth, 2 Virginia Cas. 387, 391, decided in 1824 in Virginia, where the statute dividing the crime of murder into degrees was like that of Pennsylvania, it was said that the legislature did not intend to change, much less to divide, the common law crime of murder into two separate offences to be prosecuted and punished under two distinct indictments, but intended to graduate the punishment of each murder according to the circumstances under which it should be committed. In Green v. Commonwealth, 12 Allen, 155, 170, the Supreme Judicial Court of Massachusetts, referring to the previous Opinion of the Court. cases of Commonwealth v. Gardner, 11 Gray, 438, and Commonwealth v. Desmarteau, 16 Gray, 1, said: "The reason on which these decisions were founded was this: that the statute establishing degrees of murder did not create any new offence or change the definition of murder as it was understood at common law; that the forms of indictment previously in use descriptive of murder embodied every shade or degree of the crime, from that which was most aggravated, malicious, and premeditated down to that which had only the element of implied malice in its most mitigated form; and that as the offence was not changed, but only its punishment mitigated in certain cases, the indictment was sufficient to embrace every species of murder, whether it fell within one or the other of the degrees of homicide as defined by the statute. The logical and necessary conclusion from these discussions is, that an indictment for murder at common law does charge murder in the first degree." To the same effect are many other adjudged cases, among which are Graves v. State, 45 N. J. Law, (16 Vroom,) 203, 206; Mitchell v. State, 8 Yerger, 513, 526; People v. Murray, 10 California, 309, 310; People v. Dolan, 9 California, 576, 584; Kennedy v. People, 39 N. Y. 245, 250; People v. Conroy, 97 N. Y. 62, 70; State v. Lessing, 16 Minnesota, 64, 66, 67; State v. Verrill, 54 Maine, 408, 415; Gehrke v. State, 13 Texas, 568, 573, 574; McAdams v. State, 25 Arkansas, 405, 416. We are of opinion that the indictment in this case sufficiently charged the crime of murder. The acts constituting the crime are set forth with such clearness and distinctness that both the defendant and the court understood the character of the offence charged, and the court was enabled to pronounce judgment according to the right of the case. The defendant was charged with having wilfully, feloniously, and of his deliberately premeditated malice aforethought, assaulted the deceased with a revolver, with which he beat, bruised, and wounded her upon the head, inflicting a mortal wound, from which death instantly resulted, whereby, in the manner stated, the defendant killed and murdered the person so assaulted. The indictment alleges an unlawful killing with Opinion of the Court. malice aforethought and thereby a murder. It was not necessary to allege, in express words, an intent to kill, because murder, as defined by the statute, may be committed if the killing be unlawful, and if no considerable provocation appears, or the circumstances attending the killing show an abandoned or malignant heart. Under the charge made in this case it was competent to show by evidence, under section 4454 of the Compiled Laws of Utah, that the killing was with wilful, deliberate malice, and was premeditated, and it was, perhaps, competent to show that the killing, in the mode charged, was by an act greatly dangerous to the life of the decedent, and "evidencing a depraved mind, regardless of human life." In either case, a verdict of murder in the first degree would have been proper. If the evidence showed a case of homicide that under the statute was not murder in the first degree, but was nevertheless committed under such circumstances as would have constituted murder at common law, then the verdict should have been that the defendant was guilty of murder in the second degree. But as the evidence was not preserved in a bill of exceptions, we cannot say that the verdict of guilty of murder in the first degree was unauthorized by the facts adduced at the trial. It certainly was within the scope of the indict ment. Another assignment of error is that the court failed to adjudge that the defendant was guilty of some offence. This objection is supposed to be sustained by section 5100 of the Compiled Laws of Utah, which provides: "After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, if the judgment is not arrested, or a new trial granted, the court must appoint a time for pronouncing judgment, which must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, as remote a time as can reasonably be allowed, but in no case can the judgment be rendered in less than six hours after the verdict." There is nothing in the record upon which this assignment can be based. The motions for new trial and in arrest of judg ment having been overruled, and the defendant having been Syllabus. asked, as required by the statute, (§ 5108,) if he had anything to say why sentence should not be pronounced, and having answered that inquiry in the negative, the court proceeded to judgment. The appellant insists that it was necessary that the court itself, in the exercise of its independent judgment upon the facts, and as a condition of its authority to sentence, should have adjudged that he was guilty of the crime charged before imposing the sentence prescribed by the statute. The court, the defendant being present, announced that he had been duly convicted of the crime of murder in the first degree, without any recommendation, and, therefore, it was "ordered, adjudged, and decreed" that he be taken, etc., and shot until he was dead. What the court said, on the occasion of the sentence, was, in effect, a judicial determination that the defendant had been duly convicted of the offence named. That was the only judgment it was necessary to render, and the sentence which followed gave legal effect to that adjudication. The statutes of Utah required nothing more. There are no other assignments of error which require notice at our hands. The judgment of the Supreme Court of the Territory is APPEAL GOTTLIEB v. THATCHER. Affirmed. FROM THE CIRCUIT COURT OF THE UNITED STATES FOR No. 192. Argued January 4, 5, 1894. — Decided January 15, 1894. The proofs fail to establish that the transactions complained of by the appellant were fraudulent, as alleged. The relationship of brothers does not of and in itself cast suspicion upon a transfer of property by one to the other, or create such a prima facie presumption against its validity as would require the court to hold it to be invalid without proof that there was fraud on the part of the grantor, participated in by the grantee. Opinion of the Court. A judgment being filed for record and recorded as required by the statutes of Colorado, a lien attaches at once upon the real estate of the judgment debtor. The proviso in the Colorado statute concerning liens, suspending the running of the statute when issue of execution is restrained by injunction, applies to a suspension of issue by supersedeas on appeal. IN EQUITY. Decree dismissing the bill, from which complainant appealed. The case is stated in the opinion. Mr. R. T. McNeal, (with whom was Mr. E. G. Wells on the brief,) for appellant. Mr. J. Warner Mills, (with whom was Mr. Henry C. Dillon on the brief,) for appellee. MR. JUSTICE JACKSON delivered the opinion of the court. This suit was brought by the appellant, who was the complainant below, against the appellee to set aside conveyances made to him by Samuel H. Thatcher, and the sheriff of Arapahoe County, in the Territory of Colorado, of certain lots and parcels of land, lying and being in that county, and in the eastern division of the city of Denver, on the ground that the lands were conveyed, and caused to be conveyed, to the appellee for the purpose of hindering, delaying, and defrauding the complainant, and other creditors of Samuel H. Thatcher. The case made by the pleadings and proofs, so far as need be noticed, is this: On May 7, 1874, one Samuel Kaucher recovered a judgment in the District Court of Arapahoe County, Colorado, against Samuel H. Thatcher for $2710.40. A certified copy or abstract of this judgment was duly filed for record, and was recorded in the office of the clerk and recorder of the county on June 18, 1874. From this judg ment Thatcher prosecuted a writ of error to the Supreme Court of the Territory, and executed a supersedeas bond, with sureties, in the sum of $3500. That judgment was affirmed by the Supreme Court of the Territory. Thereupon Thatcher |