But

such definition must be stated in the indictment. this proposition cannot be sustained, for it has been conclusively settled by the Court of Errors in this state, in the case of Graves v. State, 45 N. J. Law, 205, Id., 358 [46 Am. Rep. 778], that the section relied on did not create any new crime, but 'merely made a distinction, with a view to a difference in the punishment, between the most heinous and the less aggravated grades of the crime of murder.' This decided case seems to us directly in point, for in that instance, the indictment being in the abbreviated form given by the statute, it was insisted that as such form did not embody the statement that the alleged killing was ‘willful, deliberate and premeditated,' the pleading was insufficient, as it did not appear that murder, within the statutory definition of the crime, had been committed. The objection was overruled and the indictment was sustained, and it is obvious that if it be not necessary to set out in the count that the alleged killing was 'willful, deliberate and premeditated,' which is one of the categories of murder mentioned in the section, it cannot be necessary to show that the killing was in the commission of a rape, which is another of the categories of the same section."

In the case of State v. Averill, 85 Vt. 115 (81 Atl. 461, Ann. Cas. 1914B, 1005), defendant (called respondent in the opinion) was indicted for murder in the first degree. Defendant objected to an instruction upon involuntary manslaughter. The court says:

"A lawful act, done in an unlawful or negligent manner, is in law an unlawful act' (State v. Dorsey, 118 Ind. 167, 10 Am. St. Rep. 111, 20 N. E. 779); and we think the testimony given by the respondent tended to show that the shooting, though unintentionally done, was the result of negligence by her in handling the gun, indicating on her part a carelessness or recklessness incompatible with a proper regard for human life, which, if established, would in law render her guilty of involuntary manslaughter. * If an indictment so drawn sufficiently informs the accused of the cause and

nature of the accusation against him for murder, it must follow that it sufficiently informs him of the cause and nature of any offense included within that of murder, for the greater contains the less."

Elsewhere in the same opinion is found the following statement:

"Thus it was established at common law, that a person indicted for the murder of another upon mal e prepense may be found guilty of manslaughter, because it does not differ in kind or nature of the offense, but only in the degree-not in substance of the fact, from murder, but only in the ensuing circumstances, a variance as to which does not hurt the verdict."

The court held in the case of People v. Pearne, 118 Cal. 154 (50 Pac. 376):

"The indictment charged that the defendant 'did deliberately, willfully and unlawfully kill one Ellen Dogan.' The evidence indicated that the killing was not done deliberately and willfully, but accidentally and unintentionally, and the jury, taking that view of the matter, in the light of the instructions of the court as to the law, found the defendant guilty of 'involuntary manslaughter.' It is now insisted that the indictment charges the crime of voluntary manslaughter, and that under such indictment a verdict of involuntary manslaughter constitutes a fatal variance. ** This position is not well taken. If this indictment had simply charged an 'unlawful killing,' without malice, it would have charged the crime of manslaughter of both kinds, voluntary and involuntary. Yet it has always been held that upon an indictment charging murder, a conviction for manslaughter was proper. In other words, when an indictment charges murder, it also charges manslaughter. An indictment laid for murder charges an intentional killing; yet, under the criminal practice and procedure in this state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading. This is so because involuntary man

**

slaughter is the 'unlawful killing of a human being,' and such crime is always included in murder."

In Tharp v. State, 99 Ark. 188 (137 S. W. 1097), the court gave this instruction:

"The jury cannot convict of murder unless the evidence shows a killing in the manner mentioned in the indictment, but may convict of a lower degree of homicide, if the evidence warrants a conviction for a lower degree, whether the killing was done in the manner mentioned in the indictment or not."

The jury found defendant guilty of involuntary manslaughter, and the judgment was affirmed: White v. State, 121 Ga. 191 (48 S. E. 941), is to the same effect. The case of State v. Moore, 129 Iowa, 514 (106 N. W. 16), wherein the indictment was for murder and the verdict manslaughter under an instruction by the court as to gross negligence, was affirmed. In Conner v. Commonwealth, 13 Bush (Ky.), 715, the court says:

"Both voluntary and involuntary manslaughter are included in the crime of murder, and one indicted for murder may be convicted of murder or either of the degrees of manslaughter."

In Re Somers, 31 Nev. 531 (103 Pac. 1073, 135 Am. St. Rep. 700, 24 L. R. A. (N. S.) 504), the court says:

"While we are duly impressed with the fact that involuntary manslaughter does not contain the same heinous ingredients necessary to make up the crime of murder in the first or second degree, or of voluntary manslaughter, yet we are clearly of the opinion that, it being an unlawful transgression of the law against homicide, it may properly be considered a lesser degree of homicide, and that a jury may properly return in proper cases a verdict of involuntary manslaughter": State v. Tucker, 86 S. C. 211 (68 S. E. 523).

In State v. Whitney, 54 Or. 438 (102 Pac. 288), the defendant was indicted for manslaughter under Section 1898, L. O. L., referred to in the opinion as Section 1746, B. & C. That portion of the charge in the indictment which was deemed material by the court alleged that the defendant "did feloniously and voluntarily kill one Mabel Wirtz by voluntarily giving and administering unto her, the said Mabel Wirtz, on the fourteenth day of March, 1908, in the said county and state, one suppository containing bichloride of mercury," etc. Mr. Justice EAKIN, in discussing the case, says:

"It becomes important to determine whether it does state acts constituting involuntary manslaughter. The allegation in the indictment is 'By voluntarily giving and administering unto her, the said Mabel Wirtz, on the fourteenth day of March, 1908, in said county and state, one suppository containing bichloride of mercury, a deadly poison, from the effects of which deadly poison, so given and administered, she, the said Mabel Wirtz, became mortally sick, and died." This allegation does not state facts disclosing an unlawful act, or a lawful act done without due caution and circumspection, or any act of criminality. It is not necessary to allege malice or intent to kill. The criminal element consists in doing the unlawful act, without any intention to take the life of decedent, or do her great bodily harm. It is therefore necessary that the indictment disclose that the act causing death was an unlawful act. ** Counsel for the state in his brief cites authorities to the effect that poison negligently administered, or administered with an evil purpose, in the event death follows, is manslaughter. However, it is not alleged that the poison was administered without due caution or circumspection, nor is an evil purpose alleged, and therefore these authorities do not aid the state. Where the charge is murder by poisoning, as is the case in some authorities cited, the indictment charges an intent to murder, thus disclosing

an unlawful act, or evil purpose, and will support a verdict of involuntary manslaughter under Section 1746, B. & C. Comp. This was expressly held in State v. Ellsworth, 30 Or. 145 (47 Pac. 199), but in the present case the indictment is confined to a charge of a violation of Section 1746, without alleging an unlawful act."

In the case of State v. Ellsworth, cited in the above excerpt, the charge in the indictment was murder by poisoning, and this court held that under such an indictment the court could properly instruct the jury that they might return a verdict of involuntary manslaughter caused by culpable negligence. The authorities above cited indicate that where the indictment charges murder and the proof shows an unlawful, involuntary killing, the defendant may be convicted of such grade of felonious homicide as the evidence seems to warrant.

5, 6. Another reason why the case at bar should be distinguished from the Michigan case is that an indictment in this state is good as to the means by which the offense was perpetrated if it shall appear from the evidence that such means were unknown to the grand jury. This form of indictment is sanctioned by our Code: See form No. 1, p. 1010, Vol. 1, L. O. L., and forms Nos. 5 and 6, p. 1011, L. O. L.; Bishop, Cr. Proc., §§ 495, 553; Waggoner v. State, 155 Ind. 341 (58 N. E. 190, 80 Am. St. Rep. 237); Edmonds v. State, 34 Ark. 720. In the latter case it is said:

"No doubt the mode or instrument of death, if known to the grand jury, or if it can be ascertained by them, should be alleged in the indictment. ** But this rule must not be carried so far as to furnish a shield from punishment, where it is plain that a crime has been committed. It will be seen from the evidence in this case that if the means of death could not