LAWYERS REPORTS ANNOTATED NEW SERIES. GEORGIA SUPREME COURT. CICERO WATSON, Plff. in Err., V. STATE OF GEORGIA. (116 Ga. 607, 43 S. E. 32.) Indictment-grade of offense. 1. The common-law rule that, when an indictment charged an offense which in cluded within it another less offense, or one of a lower degree, the accused, though acquitted of the higher offense, might be convicted of the less, is of force in this state, though there is no statute expressly adopt ing the rule. Headnotes by COBB, J. Subject Note. - Conviction of lower or different degree in prosecution for homicide. I. The common-law rule, 1. II. Adoption of common-law doctrine in a. Generally, 2. Same felony - misdemeanor. 2. The common-law qualification of this rule, however, that a conviction for a misdemeanor could not be had under the charge of a felony, has never been of force in this state. Same description of offense. 3. But the general rule is to be qualified. to the extent that the lesser offense must either necessarily be included in a general charge of the greater, or, if it may or may not be, then the 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. Homicide — Murder - misdemeanor. 4. Under an indictment for murder, the accused may be convicted of a lower grade V. Final disposition; resentence, 20. VI. Effect as acquittal of higher degree, 20. VII. Conclusion, 22. I. The common-law rule. It was the uniform rule of the common b. Misdemeanor under charge of law that it was sufficient for the prosecu felony, 3. III. Inclusion of lower in higher degrees. a. Generally, 3. b. Second degree murder under c. Manslaughter under charge of tion to prove so much of an indictment as charged the defendant with a substantive crime, and the other averments might be treated as surplusage, and, on a trial of an indictment for murder, if there was a failure to prove malice, there might be a conviction for manslaughter, on proving homicide. People v. McDonald, 49 Hun, 67, 1 N. Y. Supp. 703; Watson v. State, 5 Mo. 497; Salisbury's Case, 1 Plowd. 101; Mackalley's Case, 9 Coke, 67b. This was put upon the ground that the killing is the substance of the crime, and the malice prepense the manner of it; and, when the matter is found, judgment shall be given thereupon, although the manner is not precisely pursued. Mackalley's Case, supra. But, at common law, if a person was charged with a felony, he could not be con c. Submission of question of lower victed of a misdemeanor, although the latter degree to jury, 18. might be legally included in the former. of felony, or even of a misdemeanor, if the lesser offense is one involved in the homicide, and is sufficiently charged in the indictment. Indictment-sufficiency. 5. An indictment for murder which alleges that the accused "a certain pistol loaded with gunpowder and leaden ball, which (the accused), then and there, had and held in, at, towards, and upon (a named person), unlawfully, feloniously, wilfully, and of his malice aforethought, did shoot off and discharge, giving to (such person), then and there, a mortal wound” of which he died, sufficiently charges the offense of shooting at another, and, under such indictment, the accused may be convicted of that offense. Verdict-misdemeanor - new trial. 6. When, under such an indictment, there is a verdict finding the accused guilty of the offense of shooting at another, it is not erroneous to overrule a motion in arrest of Henry v. State, 33 Ala. 389; State v. O'Kane, 23 Kan. 244; Gillespie v. State, 9 Ind. 380, overruling State v. Kennedy, 7 Blackf. 233; State v. Scott, 24 Vt. 127; Chitty, Crim. Law, 521. The reasons for the English rule that, on an indictment for felony, at common law, a conviction cannot be had for a misdemeanor, are that the accused loses the right of a special jury, benefit of counsel, and a copy of the indictment, and for this he has reason to object. State v. Scott, supra. II. Adoption of common-law doctrine in American jurisprudence. a. Generally. The common-law rule that, when an indictment charged an offense which included within it another less offense or one of a lower degree, the accused, though acquitted of the higher offense, might be convicted of the less, is in force in many, if not all of the United States. King v. State, 5 How. (Miss.) 730; WATSON V. STATE. And this is so in some of the states, though there is no statute expressly adopting it. WATSON V. STATE. If an indictment charges murder in the first degree, the state has the right to waive a trial as to that degree, and claim a conviction for any lesser degree embraced in the charge. State v. Baldwin, 79 Iowa, 714, 45 N. W. 297. And where, by statute, the trial jury is required to designate the degree of guilt, it may find any offense included in the charge. People v. Dolan, 9 Cal. 576; Henry v. State, 33 Ala. 389; State v. Phinney, 13 Idaho, 307, 12 L.R.A. (N.S.) 935, 89 Pac. 634, 12 A. & E. Ann. Cas. 1079; Russell v. State, 66 Neb. 497, 92 N. W. 751; McNevins v. People, 61 Barb. 307; Smith v. Territory, 14 Okla. 162, 77 Pac. 187. It was the duty of the court to leave it to the jury to apply the facts to the defini judgment. Upon the hearing of such a tion, the court looks only at the in ment and the verdict, the presumption ing that the evidence lawfully autho such a verdict. Same-insufficient evidence. 7. Whether such a verdict could lawi stand as against a proper motion fo new trial, when the evidence require finding that the person shot at died f the effects of the wound given by the cused, is a question not involved in present case, and will not now be deci (December 9, 1902.) ERROR to the Superiorview a judg RROR to the Superior Court for C convicting defendant of shooting at ano under an indictment charging him with n der. Affirmed. The facts are stated in the opinion. tions of the various grades of the crime, say what, in its opinion, was sustained the evidence. McNevins v. People, supr Under proper instructions from the co it is not only the right of the jury, i prosecution for murder, to ascertain degree of the offense, but it is the right the accused to have it ascertained by jury, and an instruction to find the defe ant guilty of murder in the first degree not guilty, is improper. Rhodes v. Com. Pa. 396. Nor is the right of the trial jury, i prosecution for homicide, to designate in verdict any offense included in the chai affected by the fact that the indictm charges murder in the first degree. Ped v. Dolan, supra. Within these rules a charge, in an ind] ment, of the offense of murder includes lower grades of homicide. Linnehan State, 120 Ala. 293, 25 So. 6; Smith State, 103 Ala. 4, 15 So. 843. A person indicted for murder in the te nical language of the common law is charg with a crime which, in its proper sense, cludes all circumstances of aggravation a all minor degrees, and he is liable to convicted of the inferior as well as of higher grades of the offense and of the hi er grades as well as of the inferior. Da v. State, 39 Md. 355; Wright v. State, Ark. 639. And, upon the trial of an informati charging an offense consisting of differe degrees, like homicide, the jury may acq the defendant of the degree charged, a convict him of any of the inferior degre Russell v. State, supra; Haddix v. Sta 76 Neb. 369, 107 N. W. 781; McNevins People and Smith v. Territory, supra; Sta v. Gaffney, Rice, L. 431. If the evidence warrants it. Haddix State, supra. Though an indictment charges murder the first degree, it is the province of t jury to determine the degree of the gui |