Person acquitted on ground of variance may be again indicted. Sec. 5. I any person who is indicted for any offense, shall on his trial be acquitted upon the ground of a variance between the indictment and the proof, or upon any exception to the form or to the substance of the indictment, he may be arraigned again on a new indictment, and may be tried and convicted for the same offense notwithstanding such former acquittal.
Person not to be punished for crime until after legal conviction. Sec. 6. No person who is charged with any offense against the law, shall be punished for such offense unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the cause and of the person.
CHAPTER 3.
OFFENSES AGAINST LIFE AND PERSON.
The killing of a human being what to be. Section 1. The killing of a human being without the authority of law, by poison, shooting, stabbing, or any other means, or in any other manner, is either murder, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances, of each case.
Murder in first decree. Sec. 2. Such killing when perpetrated with a premeditated design to effect the death of a person killed, or any human being, shall be murder in the first degree, and the person who shall be convicted of the same shall suffer the penalty of death; but any person convicted of any capital crime, shall be kept in solitary confinement for a period of not less than one month nor more than six months, in the discretion of the judge before whom the conviction is had; at the expiration of which time, it shall be the duty of the governor to issue his warrant of execution. Murder in second degree. When perpetrated by any act eminently dangerous to others, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree, and shall be punished by imprisonment in the territorial prison or penitentiary, for life; Murder in third degree. when perpetrated without any design to effect death by a person engaged in the commission of any fol-3*
