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but no change was made in the provisions relating to manslaughter. This is but a lower grade of the same offense, or a constituent part of it, and necessarily committed in the perpetration of a murder. is held in this class of cases that a count properly framed for the higher grade or offense, contains all the essential elements of a count for the minor offense. In illustration of this principle, it was said in Com. v. Harney, 10 Metc. 425, that an indictment for murder or manslaughter contains a full and technical charge of an assault and battery.

But it is further contended that the effect of the legislation referred to was to abolish the offense of murder, so far as the petitioner is concerned; and, this being done, he could not be convicted of manslaughter upon this indictment; for, while manslaughter is included in every indictment for murder, there was here no indictment for murder, and it cannot be said that one crime contains another, when there is no containing crime, or that an indictment for murder includes manslaughter, when there is no such offense as murder. It would seem to be an extravagant proposition that, as to the petitioner, there is no such offense as murder. As stated in Garvey v. People, supra, there remained unrepealed of the law of homicide, in addition to the provisions relating to manslaughter and its punishment, the sections defining the crime of murder, providing the form of indictment, and imposing the death penalty upon such as should be convicted. True, the change made was such that the petitioner could not be lawfully convicted of murder, but there existed no space of time wherein the crime of murder was not an indictable statutory offense. The statutory definition of the crime of murder was substantially the common-law definition as given by Blackstone and Coke. 4 Bl. Comm. *195. The same was true of the form of the indictment under the statute. It was substantially the common-law form. The statutory definition of manslaughter was the same as defined at common law. Id. *191. The law of manslaughter was amended in 1883, but there was a saving clause as to all cases pending, so that the amendment does not affect the petitioner. Now, counsel for petitioner say: "It is admitted that in every valid indictment for murder voluntary manslaughter is also contained, but not in an indictment that has been quashed, repealed, or rendered void as to the murder therein charged." But the indictment, as a pleading, has never been quashed, repealed, or rendered void, either by legislative action or by the order of any court. The fact that circumstances have transpired since the offense was committed which render the charge of murder therein contained inapplicable to the case of the petitioner, does not necessarily discharge him of manslaughter, which is a lower grade of the same offense. His liability to answer for the latter does not depend alone on the principle that it is an included offense, but that it is charged in the indictment as well. We apprehend that the true tests, in such a case, by which to determine the validity of the in

dictment, are: Is the offense for which the conviction is sought included in the crime charged in the indictment? and, if so, is it sufficiently alleged? Our constitution provides that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, which is nothing more than was required by the rules of the common law. We have seen that the statutory definitions of murder and manslaughter, as the same remained unrepealed after the legislation of 1881, were synonymous with the common-law definitions of the same offenses; and since the statute requires all trials to be conducted according to the course of the common law, except where another mode is pointed out in the Criminal Code, we may safely test the sufficiency of this indictment by its principles,

At common law the words "murder" and "manslaughter" appear to have been terms employed to designate different grades of the same offense, viz., the felonious killing of a human being. All that distinguished one grade from the other were the words "malice aforethought." Bish. St. Cr. § 468. In his work on Criminal Procedure, vol. 2, § 576, Mr. Bishop says: "Whether murder and manslaughter are to be called two crimes or one is matter only of words, not of ideas." Certain crimes, including murder, were arranged in grades, one above another, and each higher offense, or grade of an offense, was said to contain all that was embraced in the one ext lower, and something more. It was not necessary that the indictment for any offense should specify the name of the offense, provided it was in other respects sufficient; and, in this class of crimes, whatever the offense alleged in the indictment, there might be a conviction of any other, if within the words of the allegation. Mr. Bishop says the indictment for the higher form of the offense would almost necessarily be in such language as to include the lower; and, referring to the subject of murder, says:

"We have already considered what, in general terms, is the distinction between the indictment for murder and for manslaughter; the former merely requiring some allegations added which are not in the latter. In other words, the indictment for murder, being founded on the statute which divided felo. nious homicide into the two degrees of murder and manslaughter, must con、 tain those statutory terms which distinguished the higher from the lower." 2 Bish. Crim. Proc. §§ 576, 540; 1 Bish. Crim. Proc. §§ 416, 417, 418; 1 Bish. Crim. Law, § 798.

Mr. Wharton illustrates it as follows:

"Thus, if A. be charged with feloniously killing B. of malice prepense, and all but the fact of malice prepense be proved, A. may clearly be convicted of manslaughter, for the indictment contains all the allegations essential to that charge; A. is fully apprised of the nature of it; the verdict enables the court to pronounce the proper judgment, and A. may plead his acquittal or conviction in bar of any subsequent indictment founded on the same facts." 1 Whart. Crim. Law, § 627.

In McPherson v. State, 29 Ark. 225, 233, the court say:

"An indictment for murder charges also all the lower grades of felonious homicide, and a conviction for manslaughter may be had upon it."

No objection has been raised as to the form of the indictment in the present case, so far as the charge of murder is concerned, and we feel warranted in saying that, if any indictment in the common-law form contains all the allegations essential to the charge of manslaughter, then the indictment in this case is sufficient to sustain a conviction of that offense. If the proposition of petitioner's counsel was to be conceded, that the amendment of the statute abolished the crime of murder so far as the prisoner is concerned, the force of the proposition is expended when it is declared that he cannot be lawfully convicted of that grade of crime. But murder, as a criminal offense, was not abolished, and being primarily charged in the indictment, and the indictment being sufficient in form, it follows, under the authorities cited, that the offense of manslaughter is substantially charged therein.

In so far as the terms descriptive of the offense in the present case exceed the description of manslaughter, they do not vitiate the indictment, but may be treated as surplusage. 1 Bish. Crim. Proc. §§ 478, 479.

It was held in Reed v. State, 8 Ind. 200, that, in an indictment for homicide charging murder, but defective as to that grade of crime, the word "murder" might be rejected as surplusage, and the prisoner put upon his trial for manslaughter. The same rule was announced in Dias v. State, 7 Blackf. 20, respecting the words "with malice aforethought.

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The indictment in the case at bar, though not defective in form as to the higher offense or grade of the offense charged, charges an existing statutory grade of homicide, of which the petitioner cannot be convicted.

But there is no force in the suggestion that if put upon trial for manslaughter, and the evidence should disclose that the killing was perpetrated with malico aforethought, there could be no conviction of the minor offense. This point was expressly adjudged in Com. v. McPike, 3 Cush. 181, wherein it was held that it is no defense to an indictment for manslaughter that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was therefore murder. Also in Barnett v. People, 54

Ill. 325, in reference to the subsequent trial of the prisoner, who had been convicted of manslaughter upon an indictment for murder, the court say:

"He could not be convicted on this trial for murder, but, a new trial having been granted on the conviction for manslaughter, he might be and was perfectly tried again for the latter-named crime. And, although the proof might show that the crime was perpetrated deliberately and with malice, still, after such acquittal, the conviction could only be for the lower grade of crime.”

The foregoing conclusions and authorities sufficiently answer the propositions urged in behalf of the petitioner, that had a demurrer been filed to this indictment it must have been quashed in toto; that an original trial for manslaughter could not be had thereon; and that if the prisoner had been put to his trial for the minor offense, and the evidence disclosed a case of murder, he must have been discharged.

The proposition that the prisoner has been once in jeopardy, and for that reason could not have been put upon his trial for manslaughter, is equally fallacious. Counsel say if the indictment would support a conviction for manslaughter at all, it would have done so in the first instance; and, not being convicted of this crime on the first trial, he cannot be put in jeopardy of it again. If the prisoner had been wholly acquitted, there would be force in this assertion; but the fallacy of the reasoning is exposed by the authority cited in its support, viz., 1 Whart. Crim. Law, § 551. Mr. Wharton says:

"The rule is that if the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been legally adduced, his acquittal on that indictment may be successfully pleaded to a second indictment, and it is immaterial whether the proper evidence were adduced at the trial of the first indictment or not."

The whole section proceeds upon the supposition that the prisoner has been acquitted on the first indictment. The fact here is otherwise. The prisoner was convicted, and the judgment was reversed because the conviction was illegal. The only other instance mentioned in this section as constituting a bar to further proceedings, is where there has been a conviction on a defective indictment, followed by judgment and a performance of the sentence. This, likewise, is inapplicable to the case of the petitioner.

The cases of Shepherd v. People, 25 N. Y. 406, and the Hartung Case, supra, are mainly relied upon in support of the position assumed, that the petitioner cannot be subjected to another trial, but must be unconditionally discharged upon this writ. We agree with the attorney general and assistant counsel for the state, that the Hartung Case may be clearly distinguished from the case at bar. Every step in the Hartung Case, from its inception, is shown to have been regular and legal. There was no error in the indictment, verdict, or judgment. The conviction and judgment were, in all respects, valid when had and pronounced. The judgment was reversed because the legislature had subsequently enacted a statute which forbade the execution of the death sentence that had been pronounced. The reversal of the judgment, therefore, was not based upon error in any of the proceedings in court, but upon matter wholly de hors the record. When it is considered that the prisoner might have been executed before the repeal of the law, the cause of the reversal,-and which may be termed an accidental circumstance,-it is but rational to say that he was once in jcopardy.

But it is asserted that the Hartung Case was not so strong for an absolute discharge of the accused as this case, for the reason that all the proceedings there were legal, whereas every step in this case was illegal, except the indictment, and that, say counsel, was valid when found, but by the repeal of the law it became mere waste paper. These conclusions are evidently based on false premises. As before stated, the indictment was not invalidated, as a pleading, by the repeal of the law. And if the proceedings attending the trial were so grossly illegal, as alleged, how, upon reversal of the judgment, they would constitute a bar to another trial, especially in view of the provisions of our constitution, we do not perceive. The admission of the facts assumed would seem to conclusively establish the converse of the proposition.

Section 18, art. 2, of the constitution provides as follows:

* * Nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy,"

This judgment was reversed for errors of law, which consisted in the trial, conviction, and sentence of the petitioner for murder, whereas, his offense, under the law applicable to his case at the time of his indictment and conviction, was manslaughter.

The case of Shepherd v. People, supra, does not seem to have involved similar constitutional provisions.

It now only remains to inquire whether the petitioner can be released from the penitentiary upon the present writ. This inquiry is, we think, answered by divisions 1 and 7, section 3, of the habeas corpus act, (Gen. St. 532.) The statute provides that if it appear that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes: "First, where the court has exceeded the limit of its jurisdiction, either as to the matter, place, scene, or person." "Seventh, where there is no general law, nor any judgment, order, or decree of a court, to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding."

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We are of opinion that the court below exceeded the limit of its jurisdiction in this: that it pronounced the judgment of imprisonment in the penitentiary without any conviction of the prisoner.

The result of the former trial had been wholly annulled by this court, and the cause had been remanded for further proceedings. It was thereafter, according to the foregoing views, pending in the district court for trial upon the charge of manslaughter. The judgment having been reversed without any reservation, and the cause remanded, the verdict of the jury fell with the judgment, and it would seem that no more authority then remained for pronouncing judg ment upon such verdict, without submitting the case to another jury,

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