Mr. Robert L. Colding, for plaintiff in error: Unless the indictment is drawn in a form to include the lower offense, the conviction cannot be sustained. 1 Bishop, Crim. Law, ¶ 739, subs. 3; Logan v. United States, 144 U. S. 307, 36 L. ed. 444, 12 Sup. Ct. Rep. 677; Wood v. State, 48 Ga. 294, 15 Am. Rep. 664; Moore v. State, 59 Miss. 27; Scott v. State, 60 Miss. 269; Territory v. Dooley, 4 Mont. 295, 1 Pac. 747; People v. Adams, 52 Mich. 24, 17 N. W. 226; State v. O'Kane, 23 Kan. 244. It is not alleged that the accused, Cicero Watson, did assault, shoot at, kill, and murder the deceased. The allegation being "did kill and murder." Inasmuch as the verdict of the jury is for a crime not included in the offense of murder, and which was not charged in the in as well as the fact of guilt. State v. Grant,, 7 Or. 414. So, the right to convict of other or different degrees or offenses included in the offense charged has been expressly conferred by statute in some of the states. And a statutory provision that, on trials for murder, the jury may find the prisoner guilty of manslaughter, is not inconsistent with a constitutional provision declaring that, in all criminal prosecutions, the aceused has the right of being heard by himself or counsel, and of demanding the nature and cause of the accusation against him. State v. Seaborne, 8 Rob. (La.) 518. A verdict of a less offense cannot be found in a prosecution for murder, however, unless the less offense is included in the one charged. People v. Adams, 52 Mich. 24, 17 N. W. 226; WATSON V. STATE. And a party indicted for murder can be convicted of a lesser offense than the one charged only where the lesser is specifically charged as constituting part of the higher, or by an added count, when the lower is not necessarily included in the higher. Scott v. State, 60 Miss. 268. And where a person was tried under an indictment for murder, and the evidence showed that the killing was done with a dictment, and the accused not being on trial for an offense in which shooting at another is included, the verdict of the jury having acquitted the accused of murder or manslaughter, and these being the only offenses included in the charge of murder, the motion in arrest of judgment should be sustained. Mr. W. W. Osborne for defendant in error. Cobb, J., delivered the opinion of the court: Under an indictment for murder, the accused was convicted of the statutory offense of shooting at another. He makes the point, in a motion to arrest the judgment, that such a finding was not legally possible under the indietment upon which he was ar raigned. The question, therefore, to be determined, is whether, under this indictment, in an indictment for felonious homicide, by statute. Com. v. Bilderback, 2 Pars. Sel. Eq. Cas. 447. Upon an indictment for a felony, such as murder, there cannot be a conviction of a constituent misdemeanor if it appear that the trial and judgment will tend to deprive the defendant of some legal advantage. Com. v. Adams, 2 Pa. Super. Ct. 46. The common-law qualification of the rule that a person indicted for an offense may be convicted of a lower degree, or a lesser offense included in it, though acquitted of the higher offense, that a conviction for a misdemeanor could not be had under the charge of felony, however, has been repudiated by some of the courts. Jackson v. State, 77 Ala. 18; Henry v. State, 33 Ala. 389; State v. Thomas, 65 N. J. L. 598, 48 Atl. 1007; State v. Gaffney, Rice, L. 431; WATSON V. STATE. And within the rule thus adopted, under an indictment for murder, the accused may be convicted of a lower grade of felony, or even of a misdemeanor, if the lesser offense is one involved in the homicide, and is sufficiently charged in the indictment. Henry v. State, supra; WATSON V. STATE. And under a statute providing that the defendant may be found guilty of any ofwith a shotgun, occurring several hours be- included in that with which he is charged, pistol, he cannot be convicted of an assault fense the commission of which is necessarily fore, there being no connection between the whether it be a felony or misdemeanor, a 14ault and the killing. Letcher v. State, person may be convicted of any offense, whether a felony or misdemeanor, which is included in that for which he stands in 145 Ala. 669, 39 So. 922. b. Misdemeanor under charge of fel-dicted. Henry v. State, supra. ony. As we have seen the common-law rule III. Inclusion of lower in higher de prohibited conviction for a misdemeanor un der a charge of felony, this rule seems to have been adopted origi see supra, I. And grees. a. Generally. nally, at least, in Pennsylvania. 21LR.A. (N.S.) of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less." Stapp v. State, 3 Tex. it was possible, under any conceivable state of facts, for the accused to have been convicted of the offense of shooting at another. Or, to state it differently, can a person ever | App. 138, 144; 1 Chitty, Crim. Law, 250; be convicted, under an indictment for murder or manslaughter, of an offense not involving a homicide? The court cannot, of course, on a motion in arrest of judgment, look to the evidence, but must assume that the finding was warranted thereby. In dealing with the point thus made, it may be well, at the outset, to remark that it is an open question in this state, and that we are at liberty to consider the case unhampered by any previous adjudication. It was a rule of common law that, "when an indictment charged an offense which included within it another less offense, or one Dolan, 9 Cal. 576; Thomas v. State, 121 Ga., 331, 49 S. E. 273; Goff v. Prime, 26 Ind. 196; People v. Connors, 13 Misc. 582, 35 N. Y. Supp. 472; State v. Howard, 33 Wash. 250, 74 Pac. 382. Wharton, Crim. Ev. 9th ed. § 130; 1 Bishop, New Crim. Law, § 780; 1 Bishop, New Crim. Proc. § 417; 2 Hawk.. P. C. 620. The rule has also been stated to be that, "if, in the indictment, an offense is stated which includes within it an offense of minor extent and gravity, of the same class, then the prisoner may be convicted on that indictment of the minor offense, though the evidence fail as to the major." 1 Roscoe, Crim. Ev. 8th ed. p. 123. This rule was, however, subject to the qualification that, under an indictment for a felony, the accused could not be convicted of a misdemeanor. The reaany lower degree of the offense. Gregory v. State, 148 Ala. 566, 42 So. 829. So, under a common-law indictment for murder, the accused may be found guilty of murder in the first or second degree, or of manslaughter. Livingston v. Com. 14 Gratt. 592; Burge v. United States, 26 App. D. C.. 524. If a charge be that the accused unlawfully, feloniously, and with malice aforethought killed another, and the proof sustains the charge as made, he may be constate succeeds in proving the killing and the malice as alleged, but fails to establish the alleged deliberation and premeditation, then there may be a conviction of murder in the second degree; and if proof of malice also fails, but the killing is proved to have been done by the accused, without lawful justi fication or excuse, there may be a conviction of manslaughter. State v. Moore, 129 Iowa, 514, 106 N. W. 16. Murder in the first degree is the highest degree of the offense of felonious homicide, and includes within itself every other degree of that offense. State v. Huber, 8 Kan. 447; Smith v. State, 142 Ala. 14, 39 So. 329. And an indictment properly framed for murder in the first degree charges likewise murder in every other degree and man-victed of murder in the first degree; if the slaughter, and, under an indictment SO framed, a conviction for murder in a less degree or manslaughter can be sustained. Green v. State, 43 Fla. 556, 30 So. 656; Lewis v. State, 42 Fla. 253, 28 So. 397; | State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258; State v. Buchanan, Houst. Crim. Rep. (Del.) 79; State v. Honey (Del.) 65 Atl. 764; State v. Uzzo (Del.) 65 Atl. 775; Craft v. State, 3 Kan. 450; Buckner v. Com. 14 Bush, 601; Com. v. Couch, 32 Ky. L. Rep. 638, 16 L.R.A. (N.S.) 327, 106 S. W. 830; State v. Grant, 7 Or. 414; McPherson v. State, 29 Ark. 225; Garvey's Case, 7 Colo. 384, 49 Am. Rep. 358, 3 Pac. 903; Smith v. State, supra; Keefe v. People, 40 N. Y. 348. And a verdict of not guilty may be found. State v. Uzzo and State v. Buchanan, supra. And it is the duty of the court to explain this to the jury. Craft v. State, supra. And a charge to the jury to acquit if there is no proof of any material allegation of murder is properly refused. Smith v. State, supra. So, a charge, on the trial of an indictment for murder in the first degree, that, if the killing was done under the heat of passion, the defendant could not be found guilty as charged in the indictment, is properly refused, as ignoring the lower degrees of homicide included in an indictment for murder in the first degree. Smith v. State, 103 Ala. 4, 15 So. 843. And under an indictment for murder in the first degree, the state may show facts which will prove the offense as charged, or And when two or more persons are jointly charged, in the same indictment, with murder, it is competent for the jury to find one guilty of murder, and another of manslaughter. United States v. Harding, 1 Wall. Jr. 127, Fed. Cas. No. 15,301. b. Second degree murder under charge of first. A verdict of murder in the second degree, or any other degree of homicide as defined dictment for murder in the first degree. by statute, may be sustained under an inPotsdamer v. State, 17 Fla. 896; State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258; State v. Huber, 8 Kan. 447; Craft v. State, 3 Kan. 450; Territory v. McGinnis, 10 N. M. 269, 61 Pac. 208; Giskie v. State, 71 Wis. 612, 38 N. W. 334. A conviction of murder in the second de gree is of a crime necessarily embraced in a charge in the indictment of murder in the first degree. State v. Parnell, 206 Mo. 723, 105 S. W. 742. And it fully covers the crime charged. Weighorst v. State, 7 Md. 442; Com. v. Herty, 109 Mass. 348. son for this qualification was that a person, ors, in the respect just noted, was, however, charged with a misdemeanor was entitled to changed by statute in England, though it certain privileges to which a person in- seems that the statute was later repealed. dicted for a felony was not entitled. These See 1 Russell, Crimes, 6th ed. 45. privileges were the right to appear by counsel, and to have a copy of the indictment, and a special jury; and the object of this qualification to the general rule was to prevent the Crown from indicting for a felony a person really guilty of a misdemeanor, and thus depriving him of the special privileges to which he was entitled. See 1 Chitty, Crim. Law, 252; Stapp v. State, supra; 10 Enc. Pl. & Pr. p. 543; 1 Wharton, Crim. Law, 10th ed. § 544; Wharton, Crim. Pl. & Pr. 9th ed. § 249; 1 Chitty, Crim. Law, § 639; Clark, Crim. Law, 2d ed. 43. The distinction between felonies and misdemean That one is indicted for murder in the first degree does not prevent the court from permitting a conviction for murder in the second degree, if the evidence tends to support it. State v. Feeley, 194 Mo. 300, 3 L.R.A. (N.S.) 351, 112 Am. St. Rep. 511, 92 S. W. 663. And where, on an indictment for murder in the first degree, the evidence shows the killing to have been by the means charged in the indictment, but fails to show that the act was done with a premeditated design to effect death, and proves that it was done while the accused was engaged in the perpetration of a felony, the defendant is rightly convicted of murder in the second degree. Keefe v. People, 40 N. Y. 348. So, an indictment, though containing but a single count, charging murder in the first degree, also contains a charge of murder in the second degree. Morrison v. State, 42 Fla. 149, 28 So. 97; Craft v. State, supra. And where an indictment for murder in the first degree includes all minor grades of felonious homicide, an indictment charging that the defendant did, with express malice aforethought, kill and murder the deceased, is sufficient to sustain a conviction for murder in the second degree. Riptoe v. State (Tex. Crim. App.) 42 S. W. 381. So, under an indictment for murder in the statutory form not setting out the means used, the jury may, under a statutory provision that on the trial of an indictment the prisoner may be convicted of a less degree of the crime charged, and authorizing the jury to determine whether the crime is murder in the first or second degree, find the accused guilty of murder in the second degree. State v. Matthews, 142 N. C. 621, 55 S. E. 342. And murder, defined as the unlawful killing of a human being, with malice aforethought, includes murder in the first degree and murder in the second degree and, where the offense is charged in the language of the statute, the defendant can be legally convicted of either degree warranted by the evi In most, if not all, the states of this country, the reasons for this distinction, as stated by the authorities cited above, never existed. With us, the rights of the accused on a trial for a felony are as well protected as upon a trial for a misdemeanor. Indeed, in Georgia a person accused of a felony has some rights and privileges which a person charged with a misdemeanor does not have. For these reasons, in the majority of the states, the general rule stated above is held to be applicable even though the minor offense be a misdemeanor. In this state, the qualification to the rule has never been So, under a common-law indictment for murder, the defendant may be convicted of murder in the second degree. People v. Thompson, 41 N. Y. 1; Burge v. United States, 26 App. D. C. 524; People v. Doe, 1 Mich. 451. And an indictment containing a single count, drawn as required by the common law, for murder by stabbing with a knife, will sustain a conviction for murder in the second degree under the statute, consisting in the killing of a human being without design to effect death by person engaged in the commission of a felony. Keefe v. People, supra. So, it is competent for the state, in a prosecution for murder, to elect to indict the defendant for murder in the second degree, in the first instance, or, having indicted him for murder in the first degree, to waive that degree on the trial, and proceed to his prosecution for murder in the second degree. State v. Schieller, 130 Mo. 510, 32 S. W. 976; State v. Bobbitt, 215 Mo. 10, 114 S. W. 511; State v. Talmage, 107 Mo. 543, 17 S. W. 990. And the prosecuting attorney may, on the trial of an indictment for murder in the first degree, before the trial begins or during the trial, enter a nolle as to murder in the first degree, and elect to prosecute for murder in the second degree. State v. Frazier, 137 Mo. 317, 38 S. W. 913. And he may properly be allowed to exercise the right of election to prosecute a defendant indicted for murder in the first degree for murder in the second degree, prior to the selection of the traverse jury. State v. Moxley, 115 Mo. 644, 22 S. W. 575. So, since it is competent for the state to strike off from a charge of homicide a higher and more aggravated portion of the crime, and to prosecute for a less degree of criminality, it is competent also for the court properly to instruct the jury as to such lower degree. State v. Schieller, supra. adopted. On the contrary, there are numer- v. State, 60 Ga. 88; Polite v. State, 78 Ga. ous decisions of this court where convictions for misdemeanor offenses have been upheld under indictments for felonies. See Wilson v. State, 53 Ga. 205; Hopper v. State, 54 Ga. 389; Bard v. State, 55 Ga. 319; Trowbridge v. State, 74 Ga. 431; Malone v. State, 77 Ga. 767 (4a); Jenkins v. State, 92 Ga. 470, 17 S. E. 693. There have been numerous other decisions where the two offenses belonged to the same generic class, though the punishment fixed by the statute for the offense of which the prisoner was convicted was, in some instances, less severe than in that for which he was indicted. See Reynolds v. State, 1 Ga. 222; Whilden v. State, 25 Ga. 396, 71 Am. Dec. 181; Ward v. State, 56 Ga. 408; Williams' 347; Lavender v. State, 107 Ga. 707, 33 S. E. 420; Sessions v. State, 115 Ga. 18, 41 S. E. 259; Moody v. State, 54 Ga. 660 (4); Wostenholms v. State, 70 Ga. 720; Brown v. State, 90 Ga. 454, 16 S. E. 204; Gaines v. State, 108 Ga. 772, 33 S. E. 632. In Bell v. State, 103 Ga. 401, 68 Am. St. Rep. 102, 30 S. E. 296, Mr. Justice Fish took occasion to say that "the technical rule of the old common-law pleaders, that a misdemeanor is always merged into a felony when the two meet, and that, therefore, upon an indictment for a misdemeanor, the accused should be acquitted if the evidence shows that offense was a felony, and, upon an indictment for a felony, there should be an acquittal if the evidence shows the offense c. Manslaughter under charge of mur- | State; People v. Muhlner; Barnett v. State; der. 1. Generally. Murder necessarily includes manslaughter and embraces all its constituents. Henry v. State, 33 Ala. 389; Jackson v. State, 77 Ala. 18; Linnehan v. State, 120 Ala. 293, 25 So. 6; People v. Muhlner, 115 Cal. 303, 47 Pac. 128; People v. Borrego, 7 Cal. App. 613, 95 Pac. 381; Howard v. People, 185 Ill. 552, 57 N. E. 442; State v. Smith, 132 Iowa, 645, 109 N. W. 115; State v. Moore, 129 Iowa, 514, 106 N. W. 16; Plummer v. State, 6 Mo. 231; Jones v. Territory, 4 Okla. 45, 43 Pac. 1072; United States v. Meagher, 37 Fed. 875; United States v. Leonard, 18 Blatchf. 187, 2 Fed. 669; Mackalley's Case, 9 Coke, 67b; Salisbury's Case, 1 Plowd. 101. A person charged with wilful murder may, where the jury concludes that he is not guilty of a wilful murder, still be guilty of manslaughter. United States v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732. and Keefe v. People,-supra. And this is so, although the indictment does not specifically charge the offense of manslaughter. State v. Moore and Reynolds v. State, supra. An indictment properly drawn for murder in the first degree charges manslaughter, as well as murder, in all its degrees. McCoy v. State, 40 Fla. 494, 24 So. 485; People v. Pearne, supra; State v. Seaborne, 8 Rob. (La.) 518. And a verdict, on such an indictment, finding the prisoner guilty of manslaughter in manner and form as charged, is correct. State v. Seaborne, supra. So, a plea of guilty of manslaughter in the first degree may properly be accepted in a prosecution for murder under an indictment for murder in the first degree. People v. McDonnell, 92 N. Y. 657. And a person indicted for murder in the first degree who is convicted of murder in the second degree may, on a second trial, be convicted of manslaughter. State v. Behimer, 20 Ohio St. 572. And where a person was indicted for murder, and convicted of manslaughter, and the verdict and sentence was set aside on his appeal, and the case remanded, whereupon the accused was tried for manslaughter, and found guilty as charged, the verdict is responsive to the charge of manslaughter and not to the charge of murder. State v. Halliday, 112 La. 846, 36 So. 753. Nor does a And under a charge of murder in the first degree, the accused may be convicted of manslaughter in the different degrees. Craft v. State, 3 Kan. 450; State v. Huber, 8 Kan. 447; Smith v. State, 142 Ala. 14, 39 So. 329; McPherson v. State, 29 Ark. 225; People v. Muhlner, 115 Cal. 303, 47 Pac. 128; People v. Pearne, 118 Cal. 154, 50 Pac. 376; People v. Borrego, supra; Garvey's Case. 7 Colo. 384, 49 Am. Rep. 358, 3 Pac. 903; Brown v. State, 31 Fla. 207, 12 So. 640; Reynolds v. State, 1 Ga. 222; State v. Al division of the crime of homicide into differstatute providing for the corn, 7 Idaho, 599, 97 Am. St. Rep. 252, 64ent degrees of murder and manslaughter alPac. 1014; Howard v. People, supra; Barnett v. State, 100 Ind. 171; Powers v. State, 87 Ind. 144; State v. Salter, 48 La. Ann. 197, 19 So. 265; People v. MeArron, 121 Mich. 1, 79 N. W. 944; King v. State, 5 How. (Miss.) 730; State v. Ludwig, 70 Mo. 412; Plummer v. State, supra; Keefe v. People, 40 N. Y. 348; White v. Territory, 3 Wash. Terr. 397, 19 Pac. 37; United States v. Meagher, supra. If the testimony warrants such a finding. United States v. Meagher; Smith v. indictment for murder, may find the defendter the common-law rule that a jury, on an ant guilty of manslaughter only. Watson v. State, 5 Mo. 497. So, under a statute providing that one may be found guilty of any offense the commission of which is necessarily included in the one with which he is charged, a person charged with murder may be found guilty of manslaughter. United States v. Meagher, supra; State v. Gordon, 3 Iowa, 410; Roy to have been only a misdemeanor,-has long since been abolished in this state." And we might repeat here what was said above,that the technical rule just referred to has never existed in Georgia since it became a state. In the present case, however, both of the offenses are felonies; and so, even if the rule just referred to were of force in Georgia, it would not be decisive of this case. See Penal Code, § 113. What might, with some propriety, be called the American rule (that is, the English common-law rule without the qualification with respect to misdemeanors) is the one of force in Georgia. That rule has been stated in this way: "Where a court has general jurisdiction over both misdemeanors and felonies, one may be convicted there v. State, 2 Kan. 405; United States v. Dens- | more, 12 N. M. 99, 75 Pac. 31. Provided there is evidence in the case to sustain such a verdict. United States v. Densmore, supra. And an indictment charging the crime of murder committed in an attempt to produce a criminal abortion will support a conviction for manslaughter. Re Alcorn, 7 Idaho, 101, 60 Pac. 561; Earll v. People, 73 Ill. 329; Howard v. People, 185 Ill. 552, 57 N. E. 442. So, under an indictment for murder in the second degree, there may be a conviction of manslaughter. State v. Noble, 1 Ohio Dec. Reprint, 1; Birch v. State, 1 Ohio Dec. Reprint, 453; Powers v. State, supra. And a constitutional provision giving a person accused of crime the right to demand the nature and cause of the accusation against him does not require the trying of the prisoner upon the specific charge in the indictment, and does not prevent his conviction of manslaughter under an indictment charging murder in the second degree. State v. Noble, supra. So, under an indictment for manslaughter in the common-law form, the accused may be convicted of manslaughter as defined by the statutes, in any degree, according to the evidence. People v. Butler, 3 Park. Crim. Rep. 377. And under an indictment charging manslaughter without qualification, the defendant may be convicted of manslaughter simply, or of voluntary manslaughter expressly, or of involuntary manslaughter specially. State v. Griffin, 34 La. Ann. 37. So, where a person was indicted for murder, and subsequently a statute was passed rendering it illegal to convict him of the crime of murder, but not affecting the law as to the punishment for manslaughter, the accused may then be tried, under that indictment, for the crime of manslaughter. Garvey's Case, supra; Packer v. People, 8 Colo. 361, 8 Pac. 564. And where a person was indicted and convicted of murder, and judgment was pronounced upon the verdict, which judgment was reversed because the law had been so in, under an indictment for one crime, of any crime proved by the evidence, provided it is included in the crime charged and embraced within the terms of the indictment; and this is true although the crime charged should be a felony, and the one proved but a misdemeanor, except in those states or juris dictions where the doctrine of merger is in force." 7 Crim. L. Mag. 160. Many of the states have a statute embodying substan tially the provisions of the foregoing quotation. There is, in this state, no such statute, but the rule is none the less of force here. The question, then, is whether, under the operation of this rule, a person can be convicted, under an indictment for murder, for an offense which does not involve a homicide. The weight of authority is that he modified as to forbid it, his discharge on the ground of former jeopardy, upon a subsequent trial for manslaughter on the same indictment, is not warranted. Ibid. Under a statute providing that murder committed by a slave is capital, and giving exclusive original jurisdiction to the circuit courts of all offenses committed by slaves which are punishable with death, however, an indictment of a slave for a murder does not include a charge of manslaughter, manslaughter not being punishable by death. Nelson v. State, 10 Humph. 518. 2. Voluntary manslaughter. Upon an indictment for murder in either degree the accused may be convicted of voluntary manslaughter. Linnehan v. State, 120 Ala. 293, 25 So. 6; Allison v. State, 74 Ark. 444, 86 S. W. 409; Brown v. State, 31 Fla. 207, 12 So. 640; Thomas v. State, 121 Ga. 331, 49 S. E. 273; Powers v. State, 87 Ind. 144; Com. v. Couch, 32 Ky. L. Rep. 638, 16 L.R.A. (N.S.) 327, 106 S. W. 830; Buckner v. Com. 14 Bush, 601; Conner v. Com. 13 Bush, 714. And where, on an indictment for murder in the first degree, the defendant was acquitted of murder but found guilty of voluntary manslaughter, upon a new trial granted at his instance, on the same indictment, he may be again convicted of voluntary manslaughter. Slaughter v. State, 6 Humph. 410. So, a good indictment for murder will sustain a verdict of the jury finding the defendant guilty, as charged in the indictment, of manslaughter in the first degree, and warrants a judgment of guilty of manslaughter, and is not subject to objection that it finds the defendant guilty of two offenses. Jones v. Territory, 4 Okla. 45, 43 Pac. 1072. And where there is evidence, in a prosecution for homicide, from which the jury might have concluded that the defendant was guilty of voluntary manslaughter, the defendant has the right to have that ques |