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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.

“Instantly died” does not sufficiently aver time of death, though it is otherwise when then and there” are added.5

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

$ 538. The indictment at common law should also aver, in accordance with the facts, the place of the death of the place must 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

$ 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 thought.”

and“ murleave only so much as makes the bill to be one for man- der” reslaughter ;' and this appears to be the practice at the case to present time upon some of the circuits; but the usual

slaughter. course 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

“ malice afore

duces the man

'State v. Ryan, 13 Minn. 371, 1868. ? 2 Hawk. b. 2, c. 25, s. 36; 1 Ch.

? State v. Haney, 67 N. C. 467, 1872; C. L. 178;3 Ibid. 732; Com. v. Linton, Com. v. Robertson, (Mass.) 38 N. E. 2 Va. Cas. 205, 1820; State v. Orrell, 1 Rep. 25, 1894.

Dev. 139, 1826 ; State v. Coleman, 17 Chapman v. People, 39 Mich. 357, S. C. 473, 1882. See this point dis1878.

cussed, supra, & 292; People r. Cox, * R. v. Brownlow, 11 A. & E. 119, 9 Cal. 32, 1858; Riggs v. State, 26 1839; State v. Lakey, 65 Mo. 217,1877. Miss. 51, 1853; Brassfield v. State, 55

• State v. Steeley, 65 Mo. 218, 1877. Ark. 556, 1892; Ball v. U. S., 11 Sup. See Com. v. Ailstock, 3 Gratt. 650, Ct. Rep. 761, 1891. 1846; State v. Ward, 9 Mo. App. 587 ; 81 East P. C. c. 5, s. 117, p. 347. 8. C. 74 Mo. 253, 1881.

See supra, % 292. 6 Whart. Cr. Pl. & Pr. & 132. Su- 9 2 Hale, 162. pra, 2 529.

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. $ 540. The joinder of counts, being common to indictments gen

erally, is discussed at large in another work. It is suffVarying

cient here to repeat that counts varying the statements

of the mode of death are constantly sustained ;' and that joined.

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."

counts

may be

XV. VERDICT.

$ 541. Where the jury convicts of manslaughter (or of murder

in the second degree), the verdict, in order to be techniConviction or acquit-cally correct, should be, “Not guilty of murder, but slaughter guilty of manslaughter (or of murder in the second deacquits of gree).” In Maryland this exactness is held to be essen

.

tial. But in most jurisdictions such nicety is not required. And where the indictment includes murder, and is itself

1 Turner's Case, 1 Lew. 176, 1830. Supra, % 525; Com. v. Webster, 5

2 R. v. Nicholson, 1 East P. C. 346, Cush. 295, 1850; Hunter v. State, 40 1798; Com. v. Chapman, 11 Cush. N. J. L. 495, 1878; State v. Baker, 63 422, 1853; Com. v. Gibson, 2 Va. Cas. N. C. 276, 1869; Dill v. State, 1 Tex. 70, 1817; Maile v. Com., 9 Leigh, 661, App. 278, 1876. That this right is 1839. See, for other cases, supra, & not affected by the division of murder 517. Under Wisconsin statute, see into degrees, see Cox v. People, 19 Chase v. State, 50 Wis. 510, 1880. Hun, 430, 1879; 80 N. Y. 500.

If a person be indicted as accessary 5 Whart. Cr. Pl. & Pr. 88 290-97; after the fact to a murder, he may be State v. Hamlin, 47 Conn. 95, 1879; convicted as accessary after the fact Hawley v. Com., 75 Va. 847,

1880; to manslaughter, if the offence of the People v. Valencia, 43 Cal. 552, 1872. principal turns out to be manslaugh- State v. Flannigan, 6 Md. 166, ter. R. v. Greenacre, 8 C. & P. 35, 1854; Weighurst v. State, 7 Ibid. 445, 1837. Either assisting the party to 1854. conceal the death, or in any way en- ? See Whart. Cr. Pl. & Pr. : 465, abling him to evade the pursuit of 757 et seq. See Pace v. State, (Tex.) justice, will render a party, who knows 20 S. W. Rep. 762, 1892, where the offence to have been committed, “guitty" instead of "guilty” was an accessary after the fact. Ibid. used. 8 Whart. Cr. Pl. & Pr. & 297.

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 not in some jurisdictions, of the misdemeanor of involun- Jury may 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 deg 5

gree.

1

can

See, fully, cases cited in Whart. Dak. Ter. 125, 1879; and see other cases Cr. Pl. & Pr. 8 465, 742; Com. v. cited Whart. Cr. Ev. & 145, and of Herty, 109 Mass. 348, 1872; People v. manslaughter in the second degree, Knapp, 26 Mich. 112, 1872; State v. Brown v. State, 31 Fla. 207, 1893. As Lessing, 16 Minn. 75, 1870; DeAr- sustaining murder in the second deman v. State, 71 Ala. 351, 1882; Syl- gree, see State v. Dowd, 19 Conn. 388, vester v. State, 72 Ibid. 201, 1882; 1849; Johnson v. State, 17 Ala. 618, but see State v. McCord, 8 Kans. 232, 1850 ; State v. Smith, 53 Mo. 139, 1871; Green v. State, 38 Ark. 221, 1873; McPherson v. State, 29 Ark. 1881. In Missouri a statute has been 225, 1873. See other cases cited passed modifying this rule ; but this Whart Cr. Ev. & 144. statute is unconstitutional as to all 3 Com. v. Gable, 7 S. & R. 423, offences committed before its passage. 1821 ; Walters v. Com., 44 Pa. 135, Kring v. Missouri, 107 U. S. 221, 1862; but see Whart. Cr. Pl. & Pr. & 1882, cited supra,& 30.

261; and Hunter v. Com., 79 Pa. 503, ? 2 Hale, 246; Fost. 329; State v. 1873; Bruner v. State, 58 Ind. 159, Dearborn, 54 Me. 442, 1867; State v. 1877. In Kentucky and Louisiana Burt, 25 Vt. 373, 1853; McNevins v. there be such a conviction. People, '61 Barb. 307, 1872; Keefe v. Buckner v. Com., 14 Bush, 601, 1879; People, 40 N. Y. 348, 1869; State v. State v. Griffin, 34 La. An. 37, 1882. Flannigan, 6 Md. 167, 1854; Davis v. Under murder, in Kentucky, deState, 39 Ibid. 355, 1873; Com. v. Liv- fendant cannot be convicted of wilingston, 14 Gratt. 592, 1857 ; Wroe v. fully striking. Conner v. Com., 13 State, 20 Ohio St. 460, 1870; Barnett Bush, 714, 1878. v. People, 54 Ill. 325, 1870; Gordon * State v. Smith, 53 Mo. 139, 1873. v. State, 3 Iowa, 410, 1856; State v. 5 Whart. Cr. Pl. & Pr. 8 755; Lessing, 16 Minn. 75, 1870; State v. Mickey v. Com., 9 Bush, 593, 1873. Martin, 30 Wis. 216, 1872; Jordan v. Supra, & 236. See Brannigan v. PeoState, 22 Ga. 545, 1857; Bell v. State, ple, 3 Utah, 488, 1869, where on an 48 Ala. 685, 1871; Hurt v. State, 25 indictment of several persons verdict Miss. 378, 1853; Watson v. State, 5 was “prisoner guilty.” See Bowman v. Mo. 497, 1838; State v. Sloan, 47 State, (Tex.) 20 S. W. Rep. 558, 1892, Ibid. 604, 1871; State v. McCord, 8 for acquittal of accomplice. State v. Kans. 232, 1871; People v. Gilmore, Pratt, 88 N. C. 639, 1883; State v. 4 Cal. 376, 1854; State v. Bradley, 34 Whitson, 111 N. C. 695, 1892. See S. C. 136, 1891 ; Territory v. Gay, 2 State v. Whitt, 113 N. C. 716, 1893.

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 specify

a general rule, established in many States by statute (e. g., degree.

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

1

Kennedy v. People, 39 N. Y. 245, see McGuffie v. State, 17 Ga. 497, 1868; S. P., Territory v. Romine, 2 1855; Washington v. State, 36 Ibid. New Mexico, 114, 1881; Territory v. 222, 1867. As to Florida, see Nelson Yarberry, Ibid. 391, 1883; People v. v. State, 32 Fla. 244, 1893; Grant 4. Cassiano, 30 Hun, (N. Y.) 388, State, 33 Fla. 291, 1894. 1883.

In Massachusetts, in a celebrated 2 State v. Verrill, 54 Me. 408, 1867; case which has been the subject of State v. Cleveland, 58 Me. 564, 1870; much discussion, in 1865–6, it was Com. v. Herty, 109 Mass. 348, 1872; held that a plea of "guilty of murder State v. Dowd, 19 Conn. 388, 1849; in the first degree,” to the ordinary Ford v. State, 12 Md. 514, 1858 ; State indictment for murder, is good withv. Oliver, 2 Houst 585, 1855; State v. out specifying the facts which make Town, Wright, 75; Dick v. State, 3 murder in the first degree, and that Ohio St. 89, 1853; Parks v. State, on this a capital sentence could be Ibid. 101, 1853 (in Ohio, however, the imposed. Green v. Com., 12 Allen, indictment must be special under stat- 155, 1866. ute, as there are no common law In Missouri only the minor degrees crimes); Fouts v. State, 8 Ibid. 98, need be specially found. State t. 1857; Hagan v. State, 10 Ibid. 459, Brannon, 45 Mo. 329, 1870. But see 1859; State v. Moran, 7 Clarke, (Iowa) State v. Jackson, 99 Mo. 60, 1889. See 236, 1858; State v. Redman, 17 Ibid. State v. Meyers, 99 Mo. 107, 1889. 329, 1864 (see, however, State v. See, further, as to verdicts, Kannon Weese, 53 Ibid. 92, 1880); Tully v. v. State, 10 Lea, 386, 1882; State v. People, 6 Mich. 273, 1859; Hogan v. Potter, 16 Kans, 80, 1876; State . State, 30 Wis. 428, 1872; State v. Bowen, Ibid. 475, 1876; Ford v. State, Reddick, 7 Kans. 143, 1871; State v. 34 Ark. 649, 1879; Wooldridge . Huber, 8 Ibid. 447, 1871; Johnson v. State, 13 Tex. App. 443, 1883; Walker State, 17 Ala. 618, 1850 ; Hall v. State, v. State, Ibid. 618, 1883; Johnson r. 40 Ibid. 698, 1867; Robertson v. State, State, 30 Tex. App. 419, 1891. 42 Ibid. 509, 1868 (by statute); Levi- In Pennsylvania, on an indictment

ate, 54 Ibid. 520, 1875 (a case for murder by poisoning, a verdict of of poisoning); Storey v. State, 71 guilty in manner and form as indicted Ibid. 331, 1882; Kendall v. State, 65 is a verdict of guilty of murder in the Ibid. 492, 1880; McGee v. State, 8 first degree. Com. v. Earle, 1 Whart. Mo. 495, 1844; State v. Upton, 20 525, 1836. But if the indictment is Ibid. 397, 1855; People v. Campbell, one which fits equally to murder in 40 Cal. 129, 1870; Isbell v. State, 31 the second degree, then a general Tex. 138, 1868; Dubose v. State, 13 verdict of guilty carries only the Tex. App. 418, 1883; State v. Rover, second degree. Johnson r. Com., 24 10 Nev. 388, 1875. As to Georgia, Pa. 386, 1855. But now the verdict, 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.?

son v.

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.

$ 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.

No verdict

sault.

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

83, 1890. See Hays v. Com., (Ky.) 14 In Indiana, where there are no com- S. W. Rep. 833, 1890 ; State v. West, mon law crimes, it is held that the (La.) 13 So. Rep. 173, 1893. indictment must specially designate In some States not only the degree the grade under the statute; and but the punishment must be specified. hence a general verdict of guilty under Infra, 8 547. an indictment for the first degree con- 1 State v. Brannon, 45 Mo. 329, 1870. victs of the first degree. Kennedy v. That in a verdict for “manslaughter State, 6 Ind. 485, 1855. See Fahne- in the second degree,” the italicized stock v. State, 23 Ibid. 231, 1864; words can be discharged as surplusage, Snyder v. State, 59 Ibid. 105, 1877. see Traube v. State, 56 Miss. 153, 1878.

In State v. Buzzell, 58 N. H. 257, ? Welch v. State, 50 Ga. 128, 1873. 1878, which was an indictment against 3 State v. Hooker, 17 Vt. 658, 1845; an alleged accessary before the fact to Com. v. Earl, 1 Whart 525, 1821 ; a murder, the jury returned a verdict White v. Com., 6 Binn. 179, 1813, but of guilty, without finding whether the see Lane v. Com., 59 Pa. 371, 1868; defendant was accessary to murder in State v. Weese, 53 Iowa, 92, 1880; the first or second degree. The prin- State v. Jennings, 24 Kans. 642, 1881. cipal had been convicted of murder in See Evans v. State, 58 Ark. 47, 1893. the first degree, which appeared by Supra, 8 393. the record. It was ruled that the ver- 5 See Whart. Cr. Pl. & Pr. (9th ed.) dict was equivalent to guilty of being $ 249. accessary to murder in the first degree. 6 Whart. Cr. Pl. & Pr. 8742; Whart.

In Garvey v. People, 6 Colo. 559, Crim. Ev. 2 132. 1883, it was held that a plea of guilty

That such convictions can now be goes to the lowest degree.

had both in England and this country, Verdict of "guilty in the mercy of see R. v. Birch, 7 Den. C. C. 185;

4

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