MURDER-MANSLAUGHTER-REPEAL OF STATUTE-HABEAS CORPUS.-The petitioner was indicted on March 15, 1881, for a murder alleged to have been committed on May 23, 1880, tried under such indictment, found guilty of murder, and sentenced to a life imprisonment. Such judgment of conviction was subsequently reversed by the supreme court, and the cause remanded to the lower court, for the reason that after the commission of the offense the legisture had so amended the statute concerning murder as to render it impossible for the petitioner to be convicted of such crime. Hell, that neither such amendment nor reversal repealed, quashed or rendered void such indictment as a pleading; that upon the going down of such case to the lower court the petitioner could be tried and convicted under such indictment for manslaughter, but that a judgment for manslaughter rendered upon the former verdict convicting the petitioner for murder, without a re-trial under the indictment, was absolutely void, and that the petitioner was entitled to his discharge from an imprisonment thereunder upon habeas corpus.

PETITION for a writ of habeas corpus. The opinion states the facts.

BECK, C. J. The petitioner was indicted for the murder of one George Wolf, alleged to have been perpetrated on the 23d day of May, 1880. The indictment was found by the grand jury on the 15th day of March, 1881, on which he was tried at the special November term of the district court of Arapahoe county, 1881, found "guilty of murder as charged in the indictment," and sentenced to impris onment for life in the state penitentiary. A writ of error to the judgment was prosecuted to this court, and at the April term, 1883, we reversed the judgment and remanded the case, for the reason that after the commission of the offense the legislature had so amended. the statute concerning murder as to alter the situation of the prisoner to his disadvantage, without a saving clause as to the repealed provisions, thus making the law ex post facto, as to the case of the petitioner.

The petition is demurred to by the attorney-general on behalf of the people, and it is stipulated by counsel representing the respective parties that the cause be heard upon this demurrer, and that therecord upon the writ of error of Garvey (the petitioner) v. The People recently heard and determined in this court, together with the judgment of the district court of Arapahoe county, subsequently rendered, denying the motion to quash the indictment and entering:

judgment upon the former conviction, be considered as a part of the present petition for a writ of habeas corpus.

Upon the return of the record into the district court the petitioner moved to quash the indictment, upon the ground that it was insufficient in law, as appeared from the judgment of reversal. The petition alleges that the court denied the motion to quash, and gave judgment on the same verdict without any further trial of the prisoner, that he be confined in the state penitentiary for the term of eight years. Upon this judgment the prisoner was committed to the penitentiary, where he still remains in confinement, and to be released from which he has sued out from this court the presen writ of habeas corpus.

The judgment complained of is a judgment for manslaughter.

The grounds of the present application appear to be: First, That the condition of the law applicable to the case of the prisoner at and since the time of his trial for murder, has been such that he could. not lawfully be tried for any offense charged in the indictment in question. Second, That the action of the district court in pronouncing judgment for manslaughter without a trial by jury was without jurisdiction, and therefore null and void.

Upon the first proposition it is contended that the repeal of the provisions of the law of homicide, above alluded to, quashed the indictment, or left it in the same condition it would have been if no law authorizing an indictment for murder had ever existed. That if this be true there could be no record in the district court upon which punishment for any offense charged in the quashed indictment could be inflicted. The repeal of the statutory provisions had the same effect upon the indictment as if a demurrer thereto had been sustained on the ground that it charged no crime. There could not be a conviction of manslaughter, because it was quashed in toto, and not in part only. A demurrer, it is argued, would not have been sustained as to the charge of murder and overruled as to the charge of manslaughter involved in the allegations constituting murder, but the indictment would have been quashed and the prisoner discharged.

Much prominence is given the proposition that an indictment, or any pleading under a statute which is repealed after the filing thereof, is for all purposes absolutely nuli and void.

The act amending the criminal code was approved March 1, 1881, and while it did not go into effect until after the filing of the indictment on the 15th day of March, 1881, still the amendment of the statute did not wholly repeal or annul the indictment. The law of homicide was not repealed. Two sections concerning the punishment of murder were repealed, 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. It is held in this class of cases. that a count properly framed for the higher grade of offense contains all the essential elements of a count for the minor offense. In illus

tration of this principle it was said in Commonwealth v. Harney, 10 Met. 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 ist 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. The 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 erime of murder was substantially the common law definition as given by Blackstone and Coke: 4 Bl. Com. 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: 4 Bl. Com. 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 indictment 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 of manslaughter, as the same remained unrepealed after the legislature 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 crimnal 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: Bishop Stat. Cr. Sec. 468.

In his work on criminal procedure, vol. 2, sec. 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 next 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 found on the statute which divided felonious homicide into the two degrees of murder and manslaughter must contain those statutory terms which distinguish the higher from the lower: 2 Bish. Crim. Pro., secs. 576, 540; 1 Bish. Crim. Pro., secs. 416, 417, 418; 1 Bish. rim. 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 Wharton Crim. Law, sec. 627.

In McPherson v. The State, 29 Ark., 225-233, the court says: "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 esssential 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. Pro. Secs. 478, 479.

It was held in Reed v. The State, 8 Ind. 200, that in an indictment for a 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 Dios v. The State, 7 Blackf. 20, respecting the words "with malice aforethought."

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 malice aforethought there could be no conviction of the minor offense. This point was expressly adjudged in Commonwealth 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. The People, 54 Ill. 325, in reference to tho 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 properly tried again for the latter named crime; but 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.