ing with the ruling made in the present, The indictment in the present case avers case. In that case the court was reviewing that Cicero Watson, "with force and arms, the evidence, and held that there could not in and upon one John Robinson, in the peace be a conviction for a criminal assault when of God and said state being unlawfully, fedeath resulted from such assault. It was loniously, wilfully, and of his malice aforefurther ruled that a conviction for an as- thought, did make an assault, and a cersault could not be sustained under an in- tain pistol loaded with gunpowder and leaddictment for murder which does not charge en ball, which the said Cicero Watson, then a murder by assault; that there could be no and there, had and held in, at, towards, and conviction of a lighter offense than is upon the said John Robinson, unlawfully, charged in the indictment, unless it is one feloniously, wilfully, and of his malice afore'included in that which is charged. The of thought, did shoot off and discharge, giving fense of shooting at another may or may to the said John Robinson, then and there, not be involved in a homicide, and, there- a mortal wound of which mortal wound the fore, it is essential to a conviction of this said John Robinson, then and there, did offense, under a charge of unlawful homi- die. And so the jurors aforesaid, upon their cide, that the indictment should contain oaths aforesaid, do say that the said Cicero averments necessary to charge this offense. Watson, him, the said John Robinson, in taining a good charge of assault independent manslaughter in the first degree in killing a of the charge of murder. Baysinger v. Ter- person by stabbing, a verdict by the jury, ritory, 15 Okla. 386, 82 Pac. 728. on the theory that the defendant was concerned in the assault, but that the stabbing was done by another, of guilty of assault in the first degree, is not sustained by a statutory provision that, upon trial for murder or manslaughter, if the act complained of is not proved to be the cause of death. the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence, since the act complained of, which must not have been the cause of death, means the act charged in the indictment, to wit, the stabbing. People v. Schiavi, supra. So, at common law, manslaughter was a felony, while assault and battery was only a misdemeanor, and, on a trial for a felony, the prisoner could not be convicted of a misdemeanor. State v. Thomas, 65 N. J. L. 508, 48 Atl. 1007, reversing 64 N. J. L. 532, 45 Atl. 913. And an indictment for manslaughter charging, in the words of the statute, that the defendant did feloniously kill and slay the deceased, will not support a conviction for assault and battery. Ibid. And under an indictment for manslaughter, a defendant cannot be convicted of the offense created by a statute providing that any two or more persons who shall fight together or so commit, or attempt to commit, assaults and batteries upon each other, or shall be present aiding, assisting, or abetting the same, either in a public or a private place, shall be jointly guilty of a misdemeanor. State v. Scaduto, 74 N. J. L. 289, 65 Atl. 908. And where one of two persons engaged in an assault upon another who was stabbed and killed was charged with manslaughter in the first degree on the theory that he did the killing, and the jury brought in a verdiet of conviction for assault on the theory that the other did the killing, the verdict is not supported by the indictment, and is a nullity, and does not constitute an acquittal of the higher crime, entitling the defendant to be discharged. People v. Schiavi, 96 App. Div. 479, 89 N. Y. Supp. 564. So, under a statutory provision that, if any person shall unreasonably abuse or cruelly treat a slave, whether his own property or the property of another, he shall be fined a specified amount, and if, by reason of abuse or cruel treatment to a slave, death shall result, the offense is murder, an indictment charging that the accused did maliciously and wilfully, with malice aforethought, inflict unusual pain and injury upon a negro slave, without just provocation, then and there wilfully killing and murdering him, is one for murder, and a verdict of guilty of cruel treatment, assessing a fine, would be an acquittal of the charge of murder, and is not warranted by the indictment. Presley v. State, 30 Tex. 160. And a statutory provision that, upon the trial of any indictment for felony, except murder or manslaughter, the jury may acquit the defendant of such felony, and find him guilty of a misdemeanor, impliedly forbids conviction on an indictment for murder, either for aggravated assault and battery, or for simple assault and battery. Com. v. Adams, supra. So, under this rule, a statutory provision that, upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime, does not war-f. rant a conviction for a simple assault in a prosecution under an indictment for murder in the first degree. People v. McDonald, su pra. And where a person was charged with Where a person commits a felony on the person of another, causing the latter's death, the jury, in a prosecution for the killing, may, if they see fit, ignore the doctrine of necessary for the proof to fail, as to character of the wound so given, we do decide. Both offenses were felonies. lesser was a part of the greater, and volved in it. Under the allegations of indictment, the greater offense could have been made out without proof of lesser, and we think the trial court comn ted no error in overruling the motion arrest of judgment. manner aforesaid, unlawfully, feloniously,, which the wound was inflicted was wilfully, and of his malice aforethought, tained by proof, and whether or not it did kill and murder, contrary to the laws of said state," etc. It is not debatable that if, under any indictment for murder, the accused can be convicted of the offense of shooting at another, he could have been so convicted under this indictment. See, in this connection, Moody v. State, 54 Ga. 660 (4); Wostenholms v. State, 70 Ga. 720; Jenkins v. State, 92 Ga. 470, 17 S. E. 693; Gaines v. State, 108 Ga. 772, 33 S. E. 632. It charges distinctly that the crime of murder was committed by shooting at the deceased, and, in this manner, inflicting upon him a mortal wound. It is to be presumed that the allegation as to the manner in Judgment affirmed. All the justices concur, except Lumpk P. J., absent on account of sickness. constructive malice, and find the prisoner | degree, find that the accused was guilty guilty of manslaughter. R. v. Greenwood, 7 | murder in the second degree. State v. M Cox, C. C. 404. thews, supra. And under a statute providing that every person who shall kill another, under certain circumstances, shall be guilty of murder in the first degree, the crime is a single one, and, by whatever means it may have been committed, it includes the crime of murder in the second degree and manslaughter, as defined by statute. State v. Greer, 11 Wash. 244, 39 Pac. 874. And the court cannot deprive the jury of such right by a peremptory instruction to the effect that the defendant, if guilty at all, is guilty of murder in the first degree. State v. Phinney, supra. And an information charging the accused with the crime of murder in the first degree by the administration of poison will support a verdict of murder in the second degree. State v. Greer, supra; State v. Dowd, 19 Conn. 388. At least where it cannot be said that the case in question might not have been one in which the crime resulted from a wilful, deliberate, and premeditated act. State v. Dowd, supra. So, where, on a trial for murder in the first degree, the evidence showed that the crime was committed by poison, so that the law presumed that the killing was murder in the first degree, the jury may, under a statute providing that, on the trial of an indictment, the prisoner may be convicted of the crime charged, or one of a less degree, and the jury must determine whether the crime is murder in the first or second And under a statute providing that murder which shall be perpetrated by mea of poison or by lying in wait or by a other kind of wilful, deliberate, and p meditated killing, or which shall be co mitted in the perpetration of, or the 1 tempt to perpetrate, any arson, rape, r bery, or burglary, shall be deemed murd of the first degree, and all other kinds murder shall be deemed murder of the s ond degree, and the jury, before whom a person shall be tried, shall, if they find t person guilty thereof, ascertain, in the verdict, whether it be murder in the fir or second degree, the jury has power to 1 a lower degree of the crime than that whi the statute provides. Lane v. Com. 59 P 371. So, under a statute defining murder the first degree as killing another with d liberate and premeditated malice, or in th perpetration of named felonies, where a information charged killing by stranglin it is not error to instruct the jury as lesser degrees of murder and manslaughte although the evidence tends to show tha the crime was committed while the accuse was committing a rape upon the deceased defined by the statute to be murder in th first degree. State v. Howard, 33 Wash 250, 74 Pac. 382. And under a statute making and pro curing an abortion a felony, and providing that, where death of the woman results, th person procuring it is guilty of murder i the second degree, an indictment for abor tion charging that the female died as result thereof includes the offenses of mur der in the second degree, manslaughter, and assault. State v. Fleetwood (Del.) 65 Atl 772. So, the fact that the evidence in a prose cution for homicide tends to show that the homicide was committed in the perpetra tion of arson, and that the statute itself makes such a homicide murder in the first degree only, does not take this character of murder out of the general rule which permits a prosecuting attorney to elect to try for murder in the second degree. State v., offense of feloniously suffering and permit. Bobbitt, 215 Mo. 10, 114 S. W. 511. But while the general proposition is true, that there may be a conviction of manslaughter under an indictment for murder where an indictment charges a murder by causing death while committing a felony, there is no element of manslaughter present, and no instruction on the subject of manslaughter should be given. People v. Huntington, 138 Cal. 261, 70 Pac. 284. And an indictment for murder charging the killing, or injuries which resulted in death. to have been perpetrated while the accused and his associates were engaged in the commission of arson, will not support a conviction of manslaughter in the first degree consisting of killing, without design to effect death, while engaged in the commission of, or the attempt to commit, a crime or misdemeanor not amounting to a felony. Morrisett v. People, 21 How. Pr. 203. And it has been held that statutes requiring the jury to find as to the degree of the offense do not apply in a prosecution for murder by poison, which is made murder in the first degree, where the facts show that the defendant is either guilty of that erime or innocent of any offense. And that where a person is indicted under a statute specifically declaring that the killing of a human being, with malice aforethought, perpetrated by means of poison, is murder of the first degree, no state of the evidence in a prosecution for murder by poison will warrant the defendant's conviction of murder in the second degree; he is either guilty in the first degree or he is not guilty of murder. State v. Bertoch, 112 Iowa, 195, 83 N. W. 967. So, murder is a distinct class of offenses, being a generic offense, and rape is another distinct class, being also a generic offense, and rape is not necessarily included in the erime of murder, and a person indicted for the crime of murder alleged to have been committed in the perpetration of the crime of rape, and tried for the crime of murder, cannot be convicted of the crime of rape; such a conviction would be in violation of a constitutional provision that a person shall not be tried for a capital or other infamous crime except on presentment or indictment of a grand jury, and that a person shall not be deprived of his life, liberty, or property, without due process of law. Ex parte Dela, 25 Nev. 346, 83 Am. St. Rep. 603, 60 Pac. 217. And an indictment charging the defendant with the crime of murder in the second degree committed while engaged in the commission of an abortion will not sustain a conviction for unlawfully procuring an abortion, as charged in the information. State v. Belyea, 9 N. D. 353, 83 N. W. 1. But under an indictment charging manslaughter in the first degree in producing the death of an infant while the defendant was engaged in committing a misdemeanor affecting the person of the said infant, a conviction may be had for the statutory ting the health of a child to suffer by wilfully neglecting, without lawful excuse, to supply it with proper food, clothing, and care. People v. McDonald, 49 Hun, 67, 1 N. Y. Supp. 703. g. Principal and accessory. Under a statutory provision that any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal, one aiding and abetting in the commission of manslaughter may be convicted under an indictment for aiding and abetting in the commission of murder in the first or second degree. Goff v. Prime, 26 Ind. 196. And a principal charged with murder in the second degree may be put on his trial for murder after a defendant charged as principal in the first degree has been convicted of voluntary manslaughter. Brown v. State, 28 Ga. 199. And where three persons are jointly indicted for murder, one as principal in the first degree, and the others as aiders and abettors, and the one indicted as principal in the first degree is put upon his trial, and is acquitted, the record of his acquittal is inadmissible in evidence in favor of the others. State v. Ross, 29 Mo. 32. So, a person found guilty, upon the evidence, in a prosecution for homicide, of murder as an accessory at the fact and therefore a principal in the second degree, may be convicted under an indictment charging him as principal in the first degree. Territory v. McGinnis, 10 N. M. 269, 61 Pac. 208. And no distinction need be made in an indictment or in a verdict between principals in the first and second degree; and, where two persons are charged, in an indictment, with murder as principals in the first degree, if the evidence shows one of them to be guilty in the second degree, he can be convicted under such indictment. Jones v. State, 130 Ga. 274, 60 S. E. 840. Nor does the fact that a principal has been convicted only of manslaughter in a prosecution for murder, preclude the state from prosecuting another as accessory to murder before the fact. State v. Burbage, 51 S. C. 284, 29 S. E. 937. And a person indicted as accessory to the crime of murder may be convicted of being accessory after the fact to the crime of manslaughter. Ibid. So, under an indictment charging a person with being present aiding, helping, abetting, comforting, and assisting and maintaining another in the commission of a murder, the accused may be convicted of manslaughter. State v. Coleman, 5 Port. (Ala.) 32. And a person charged with others with murder in the first degree may be convicted of murder in the second degree, although he may have entered into conspiracy to kill the deceased, where the proof shows | der in the first degree. State v. Douglass, that he was present aiding and abetting 41 W. Va. 537, 23 S. E. 724. whatever was done at the time of the homicide. State v. Robinson, 12 Wash. 491, 41 Pac. 884. But a person charged with murder in the first degree, as an accessory before the fact, cannot be properly convicted of manslaughter, when the evidence shows that he was not present at the commission of the homicide and that, if guilty at all, it was in conspiring with others to produce the murder of the deceased. State v. Robinson, 12 Wash. 349, 41 Pac. 51, 902. And where the statute defines murder in the first degree as murder perpetrated by wilful, deliberate, and premeditated killing, or committed in the perpetration or attempted perpetration of felony, and provides fùrther that nothing therein contained shall be construed to require a change in the existing form of an indictment for murder, an indictment is sufficient to support a viction of murder in the first degree though it does not allege that the killing was done State with premeditation and deliberation. v. Cole, 132 N. C. 1069, 44 S. E. 391. So, under statutes like those of Minneso con IV. Requisites to proper consideration ta, upon an indictment for an offense con and determination. sisting of different degrees, like homicide, if the indictment charges the crime in terms a. Necessity that indictment cover the which embrace the highest degree of such degree found. In order to warrant the conviction of a person for a lesser offense under a charge of a greater one, the lesser offense must either be necessarily included in the general charge of the greater, or averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser offense. Scott v. State, 60 Miss. 268; WATSON V. STATE. And where murder is charged in an indictment, there can be no conviction for a lesser offense where the allegations of the indictment are not sufficient to sustain a conviction for it. Housman v. Com. 33 Ky. L. Rep. 311, 110 S. W. 236. In the above case, it was said that Buckner v. Com. 14 Bush, 603, supra, III. c, 3, simply follows Conner v. Com. 13 Bush, 722, supra, III. c, 3, and that case was distinguished upon the ground that in it the indictment did not negative the exceptions in the statute, and therefore was not good as an indictment for the statutory offense. While, on a trial for a common-law felony like murder, the defendant may be convicted of a misdemeanor, he cannot be legally convicted of any offense which is not distinctly set forth in the indictment. State v. Thomas, 65 N. J. L. 598, 48 Atl. 1007, reversing 64 N. J. L. 532, 45 Atl. 913. But an indictment for murder in the common-law form charging the offense to have been committed feloniously, wilfully, and with malice aforethought, is sufficient to sustain a conviction of murder in the first degree. Wall v. State, 18 Tex. 683, 70 Am. Dec. 302; White v. State, 16 Tex. 206; Com. v. Desmarteau, 16 Gray, 1; State v. Millain, 3 Nev. 409; Tenorio v. Territory, 1 N. M. 279. And the statutory form of indictment for murder provided for in West Virginia will sustain a conviction of murder in the first or second degree or any lower grade of homicide, and is not subject to objection be cause of the omission to charge the homicide as having been done with premeditation, as one of the essential elements of mur crime, a conviction can be had for that or And the delivery to the defendant in a prosecution for murder of a defective copy of the indictment, under a statute requiring the service of such a copy in a case of a capital crime, is not prejudicial to him where, though he was indicted for a capital crime, he was convicted of a lower offense. Allison v. State, 74 Ark. 444, 86 S. W. 409. b. The evidence. Under an indictment for murder framed according to the statute, the state is entitled to introduce any evidence which would be admissible under an indictment specifically charging a lower degree of homicide. State v. Salter, 48 La. Ann. 197, 19 So. 265; Gregory v. State, 148 Ala. 566, 42 So. 829. And where there is a failure of proof of any fact essential to a conviction of the higher degree, proof may be given of facts constituting a lower degree of the same crime, although the latter facts are not charged in the indictment; and the defendant may, upon such proof, be rightly convicted of the lower degree. Keefe v. People, 40 N. Y. 348. So, a person under indictment for murder may introduce any evidence on the trial going to show that he is guilty neither of the crime of murder nor any other crime of which he could be found guilty under the various verdicts which a jury is authorized to return under an indictment for murder. State v. Salter, supra. The question whether it is proper to submit to the jury, in a prosecution for homicide, the question of the defendant's guilt of any particular grade of offense included in the indictment, however, must be answered by considering whether there is evidence which would justify a conviction of that of fense. Allison v. State, 74 Ark. 444, 86 S., deliberation and premeditation, is no reason W. 409. for setting aside a finding of an intentional and malicious killing. Russell v. State, 66 Neb. 497, 92 N. W. 751. Courts should not humor or encourage the sentimentalism of jurors who shrink from finding an accused person guilty of the highest crime of which the evidence proves him guilty by giving instructions authorizing them to find him guilty of a lower grade of which there is no proof of his guilt. State v. Mahly, 68 Mo. 315. And an instruction in a prosecution for murder as to murder in the second degree is erroneous when, under the facts shown by the evidence, if the accused committed the homicide at all, he was guilty of murder in the first degree, and of no other grade of homicide. State v. Stoeckli, 71 Mo. 559; State v. Mahly, supra. So, if the jury in a prosecution for murder have a reasonable doubt of the guilt of the accused of the only crime which the evidence tends to prove, they should acquit, and not compromise with that doubt by finding him guilty of a lower grade of offense. State v. Mahly, supra. And while a verdict of manslaughter given, by a jury, in a case which was plainly an atrocious murder, might not be set aside, the jury should not be instructed to consider the grade of the offense in such case, where the sole inquiry is, Who is guilty? and there is no room for the inquiry, Of what is he guilty? Virgil v. State, 63 Miss. 317. So, the proof is confined to evidence embracing the included degrees, and no other crime can be submitted to the consideration of the jury. People v. Connors, 13 Misc. 582, 35 N. Y. Supp. 472. And the jury, in a prosecution for murder, may properly be told by the court to find the prisoner guilty of murder in the first or second degree, or acquit him, where there is no testimony offered which, in any degree, tends to show any facts or circumstances which can reduce the offense to manslaughter. State v. Millain, 3 Nev..409. But, though the weight of evidence may show the defendant, in a prosecution for murder, to be guilty of one of the higher grades of homicide, still, if there is evidence tending to show that he is guilty of a lower offense included in the indictment, the defendant has the right to have the question as to whether he is guilty of the lower offense presented to the jury. Allison v. State, supra. And an instruction, in a prosecution for murder, restricting the jury, in the event of conviction, to murder in the first degree or manslaughter in the third degree, is improper, and a ground for reversal, unless there was an entire absence of evidence to prove the commission of any other crime than murder in the first degree or manslaughter in the third degree. McNevins v. People, 61 Barb. 307. And the fact that the jury, on a trial of an information charging murder in the first degree, capriciously and without sufficient cause, rejected the evidence showing A verdict contrary to instructions for a less degree of homicide than the evidence proves must be received and carried out, and a new trial cannot be ordered. People v. Muhlner, 115 Cal. 303, 47 Pac. 128. And a conviction of a lesser offense, necessarily involved in the indictment, than called for by the evidence, is not cause for granting a new trial in a prosecution for homicide, or for reversal on appeal, where such motion for new trial has been refused by the trial court. Ibid.; State v. Phinney, 13 Idaho, 307, 12 L.R.A. (N.S.) 935, 89 Pac. 634, 12 A. & E. Ann. Cas. 1079; State v. Todd, 194 Mo. 377, 92 S. W. 674. Nor will a verdict for manslaughter, rendered on evidence warranting a verdict for murder, be set aside on motion of the defendant. People v. Muhlner, supra; People v. Borrego, 7 Cal. App. 613, 95 Pac. 381; Moore v. People, 26 Colo. 213, 57 Pac. 857; Brown v. State, 31 Fla. 207, 12 So. 640; State v. Salter, supra. And a person convicted of voluntary manslaughter on an indictment for murder cannot be heard to say, on appeal, that such conviction is erroneous for the reason that no sufficient provocation was shown, and that, under the evidence, he should have been convicted of murder. Murphy v. People, 9 Colo. 435, 13 Pac. 528. So, where a person was charged with murder, convicted of manslaughter, and the judgment of conviction was reversed on a second trial of the accused for manslaughter, evidence that death was caused in an attempt to perform a criminal operation on the deceased is admissible to prove the defendant guilty of manslaughter, though it proves murder for which he could not be tried. People v. Huntington (Cal. App.) 97 Pac. 760. Nor is a person accused of homicide in a position to complain that he was convicted of murder in the second degree, when the evidence showed him guilty of murder in the first degree. State v. West, 202 Mo. 128, 100 S. W. 478; State v. Schieller, 130 Mo. 510, 32 S. W. 976; State v. Sebastian, 215 Mo. 58, 114 S. W. 522; Stone v. State (Fla.) 48 So. 996; Morrison v. State, 42 Fla. 149, 28 So. 97; Castlin v. State (Tex. Crim. App.) 57 S. W. 827. In State v. West, State v. Mahly, supra, was dstinguished upon the ground that that decision was based upon other decisions made before the statutory revision of 1879, in which it was provided that, upon indictment for any offense consisting of different degrees, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such an offense or any degree thereof, and any person found guilty of murder in the second degree or |