day,' and when such date is distinctly averred, it is then enough to say that the deceased "then and there" died. It has been held, however, that this averment is insufficient when it appears that the blow and the death were at different places.3

66

'Instantly died" does not sufficiently aver time of death, though it is otherwise when "then and there" are added."

The general effect of the averment "then and there" is considered in another work."

§ 538. The indictment at common law should also aver,

Place must

in accordance with the facts, the place of the death of the beaverred. deceased."

Where the stroke was at one time and place, and the death at another time and place, the facts should be specially averred, specifying the day on which the party died, as well as that on which he was stricken; for until he died it was no murder.

8

Omission

"malice

afore

thought"

and" mur

der" re

duces the

case to

§ 539. Where the bill of indictment is found by the grand jury a true bill for manslaughter, and ignoramus as to murder, it is stated to have been the English course to strike out, of terms in the presence of the grand jury, the words " maliciously " and "of malice aforethought," and "murder," and to leave only so much as makes the bill to be one for manslaughter; and this appears to be the practice at the present time upon some of the circuits; but the usual mancourse in this country is, unless the emergency of the case prevents it, to present a new bill to the grand jury for manslaughter. And in England a learned judge went so far as to say that this should be done where the grand jury have returned manslaughter upon a bill for murder, saying, he thought it the better course to prefer a new bill, although the usual course on the circuit

'State v. Ryan, 13 Minn. 371, 1868. State v. Haney, 67 N. C. 467, 1872; Com. v. Robertson, (Mass.) 38 N. E. Rep. 25, 1894.

slaughter.

72 Hawk. b. 2, c. 25, s. 36; 1 Ch. C. L. 178; 3 Ibid. 732; Com. v. Linton, 2 Va. Cas. 205, 1820; State v. Orrell, 1 Dev. 139, 1826; State v. Coleman, 17 3 Chapman v. People, 39 Mich. 357, S. C. 473, 1882. See this point dis1878. cussed, supra, ¿ 292; People v. Cox, 9 Cal. 32, 1858; Riggs v. State, 26 Miss. 51, 1853; Brassfield v. State, 55 Ark. 556, 1892; Ball v. U. S., 11 Sup. Ct. Rep. 761, 1891.

R. v. Brownlow, 11 A. & E. 119, 1839; State v. Lakey, 65 Mo. 217, 1877. * State v. Steeley, 65 Mo. 218, 1877. See Com. v. Ailstock, 3 Gratt. 650, 1846; State v. Ward, 9 Mo. App. 587; s. c. 74 Mo. 253, 1881.

Whart. Cr. Pl. & Pr. 132. Supra, € 529.

1 East P. C. c. 5, s. 117, p. 347. See supra, 292.

92 Hale, 162.

had been to alter the bill for murder, on the finding of the grand jury. The omission of the terms "malice aforethought" and "murder" makes the indictment incapable at common law of sustaining a conviction of murder. If there are proper averments of killing, however, there can be a conviction of manslaughter under such an indictment.

Varying counts may be joined.

3

§ 540. The joinder of counts, being common to indictments generally, is discussed at large in another work. It is sufficient here to repeat that counts varying the statements of the mode of death are constantly sustained; and that an indictment for murder charging in one count A. as principal and B. as accessary before the fact, and in another count B. as principal and A. as accessary before the fact, charges but one offence, and such counts are not repugnant."

Conviction

tal of manslaughter

XV. VERDICT.

§ 541. Where the jury convicts of manslaughter (or of murder in the second degree), the verdict, in order to be technior acquit- cally correct, should be, "Not guilty of murder, but guilty of manslaughter (or of murder in the second degree)." In Maryland this exactness is held to be essential. But in most jurisdictions such nicety is not required." And where the indictment includes murder, and is itself

acquits of

murder.

6

1 Turner's Case, 1 Lew. 176, 1830. 2 R. v. Nicholson, 1 East P. C. 346, 1798; Com. v. Chapman, 11 Cush. 422, 1853; Com. v. Gibson, 2 Va. Cas. 70, 1817; Maile v. Com., 9 Leigh, 661, 1839. See, for other cases, supra, ? 517. Under Wisconsin statute, see Chase v. State, 50 Wis. 510, 1880.

4

Supra, 525; Com. v. Webster, 5 Cush. 295, 1850; Hunter v. State, 40 N. J. L. 495, 1878; State v. Baker, 63 N. C. 276, 1869; Dill v. State, 1 Tex. App. 278, 1876. That this right is not affected by the division of murder into degrees, see Cox v. People, 19 Hun, 430, 1879; 80 N. Y. 500.

5 Whart. Cr. Pl. & Pr. 290-97; State v. Hamlin, 47 Conn. 95, 1879; Hawley v. Com., 75 Va. 847, 1880; People v. Valencia, 43 Cal. 552, 1872.

If a person be indicted as accessary after the fact to a murder, he may be convicted as accessary after the fact to manslaughter, if the offence of the principal turns out to be manslaughter. R. v. Greenacre, 8 C. & P. 35, 1837. Either assisting the party to conceal the death, or in any way enabling him to evade the pursuit of justice, will render a party, who knows the offence to have been committed, "guitty" instead of "guilty" was

an accessary after the fact. Ibid.

3 Whart. Cr. Pl. & Pr. & 297.

State v.. Flannigan, 6 Md. 166, 1854; Weighurst v. State, 7 Ibid. 445, 1854.

7 See Whart. Cr. Pl. & Pr. 465, 757 et seq. See Pace v. State, (Tex.) 20 S. W. Rep. 762, 1892, where

used.

valid, either a conviction or acquittal of manslaughter, as has been seen, is an acquittal of murder. The same effect attends a conviction or acquittal of murder in the second degree, on an indictment for murder at common law.'

§ 542. On an indictment for murder the jury may find a verdict of manslaughter or of murder in the second degree, but Jury may not in some jurisdictions, of the misdemeanor of involun- convict of tary manslaughter. And on an indictment for murder minor dein the second degree there can be a convictio. of manslaughter.*

Joint defendants may be convicted of different degrees.5

Verdict must

§ 543. In New York, on an indictment for murder at common law, a verdict of guilty, without specifying the degree, is a verdict of guilty of murder in the first degree.' But as a general rule, established in many States by statute (e. g., Maine, Massachusetts, Pennsylvania, Ohio, and California), in others, as a common law principle, the degree must be designated. In Missouri it is only necessary, by statute, to specify

specify degree.

1 Kennedy v. People, 39 N. Y. 245, 1868; S. P., Territory v. Romine, 2 New Mexico, 114, 1881; Territory v. Yarberry, Ibid. 391, 1883; People v. Cassiano, 30 Hun, (N. Y.) 388, 1883.

see McGuffie v. State, 17 Ga. 497, 1855; Washington v. State, 36 Ibid. 222, 1867. As to Florida, see Nelson v. State, 32 Fla. 244, 1893; Grant . State, 33 Fla. 291, 1894.

In Massachusetts, in a celebrated case which has been the subject of much discussion, in 1865–6, it was held that a plea of "guilty of murder in the first degree," to the ordinary indictment for murder, is good without specifying the facts which make murder in the first degree, and that on this a capital sentence could be imposed. Green v. Com., 12 Allen, 155, 1866.

In Missouri only the minor degrees need be specially found. State v. Brannon, 45 Mo. 329, 1870. But see State v. Jackson, 99 Mo. 60, 1889. See State v. Meyers, 99 Mo. 107, 1889.

2 State v. Verrill, 54 Me. 408, 1867; State v. Cleveland, 58 Me. 564, 1870; Com. v. Herty, 109 Mass. 348, 1872; State v. Dowd, 19 Conn. 388, 1849; Ford v. State, 12 Md. 514, 1858; State v. Oliver, 2 Houst 585, 1855; State v. Town, Wright, 75; Dick v. State, 3 Ohio St. 89, 1853; Parks v. State, Ibid. 101, 1853 (in Ohio, however, the indictment must be special under statute, as there are no common law crimes); Fouts v. State, 8 Ibid. 98, 1857; Hagan v. State, 10 Ibid. 459, 1859; State v. Moran, 7 Clarke, (Iowa) 236, 1858; State v. Redman, 17 Ibid. 329, 1864 (see, however, State v. Weese, 53 Ibid. 92, 1880); Tully v. People, 6 Mich. 273, 1859; Hogan v. State, 30 Wis. 428, 1872; State v. Reddick, 7 Kans. 143, 1871; State v. Huber, 8 Ibid. 447, 1871; Johnson v. State, 17 Ala. 618, 1850; Hall v. State, 40 Ibid. 698, 1867; Robertson v. State, 42 Ibid. 509, 1868 (by statute); Levison v. State, 54 Ibid. 520, 1875 (a case of poisoning); Storey v. State, 71 Ibid. 331, 1882; Kendall v. State, 65 Ibid. 492, 1880; McGee v. State, 8 Mo. 495, 1844; State v. Upton, 20 Ibid. 397, 1855; People v. Campbell, 40 Cal. 129, 1870; Isbell v. State, 31 Tex. 138, 1868; Dubose v. State, 13 Tex. App. 418, 1883; State v. Rover, 10 Nev. 388, 1875. As to Georgia, Pa. 386, 1855. But now the verdict,

See, further, as to verdicts, Kannon v. State, 10 Lea, 386, 1882; State v. Potter, 16 Kans, 80, 1876; State v. Bowen, Ibid. 475, 1876; Ford v. State, 34 Ark. 649, 1879; Wooldridge v. State, 13 Tex. App. 443, 1883; Walker v. State, Ibid. 618, 1883; Johnson v. State, 30 Tex. App. 419, 1891.

In Pennsylvania, on an indictment for murder by poisoning, a verdict of guilty in manner and form as indicted is a verdict of guilty of murder in the first degree. Com. v. Earle, 1 Whart. 525, 1836. But if the indictment is one which fits equally to murder in the second degree, then a general verdict of guilty carries only the second degree. Johnson v. Com., 24

the degree when a minor offence is found.' In Georgia, a verdict of " guilty of manslaughter" is regarded as a verdict of guilty of voluntary manslaughter, the highest grade of that offence by statute.2

In some States, where the indictment is specifically for murder in the first degree, then a verdict of guilty "in manner and form as indicted," is for the first degree.3

As we have seen, a common law indictment for murder will sustain a verdict of murder in the first degree.

No verdict

sault.

§ 544. At common law-for the reason that in such case the defendant would be convicted of a misdemeanor on a trial, in which he, from the form of the indictment, would be for asdeprived of privileges to which on indictments for mere misdemeanors he is entitled, there can be no conviction for an assault under an indictment for murder. In what respect this rule has been varied by statute or otherwise has been discussed elsewhere."

by statute, must state the degree. Lane the court;" State v. Murrell, 33 S. C. v. Com., 59 Ibid. 371, 1868.

In Indiana, where there are no common law crimes, it is held that the indictment must specially designate the grade under the statute; and hence a general verdict of guilty under an indictment for the first degree convicts of the first degree. Kennedy v. State, 6 Ind. 485, 1855. See Fahnestock v. State, 23 Ibid. 231, 1864; Snyder v. State, 59 Ibid. 105, 1877.

In State v. Buzzell, 58 N. H. 257, 1878, which was an indictment against an alleged accessary before the fact to a murder, the jury returned a verdict of guilty, without finding whether the defendant was accessary to murder in the first or second degree. The principal had been convicted of murder in the first degree, which appeared by the record. It was ruled that the verdict was equivalent to guilty of being accessary to murder in the first degree. In Garvey v. People, 6 Colo. 559, 1883, it was held that a plea of guilty goes to the lowest degree.

83, 1890. See Hays v. Com., (Ky.) 14 S. W. Rep. 833, 1890; State v. West, (La.) 13 So. Rep. 173, 1893.

In some States not only the degree but the punishment must be specified. Infra, 547.

1 State v. Brannon, 45 Mo. 329, 1870. That in a verdict for "manslaughter in the second degree," the italicized words can be discharged as surplusage, see Traube v. State, 56 Miss. 153, 1878. 2 Welch v. State, 50 Ga. 128, 1873.

State v. Hooker, 17 Vt. 658, 1845; Com. v. Earl, 1 Whart 525, 1821; White v. Com., 6 Binn. 179, 1813, but see Lane v. Com., 59 Pa. 371, 1868; State v. Weese, 53 Iowa, 92, 1880; State v. Jennings, 24 Kans. 642, 1881. See Evans v. State, 58 Ark. 47, 1893. Supra, & 393.

4

5 See Whart. Cr. Pl. & Pr. (9th ed.) 249.

6 Whart. Cr. Pl. & Pr. 742; Whart. Crim. Ev. 132.

That such convictions can now be had both in England and this country,

Verdict of "guilty in the mercy of see R. v. Birch, 7 Den. C. C. 185;