Hirsohberg, J.:
The appellant, in an altercation with one Charles Brower, on the 2d day of July, 1886, killed him and hid his body in an unused well. The crime was not discovered until the summer of 1900, and [384]*384on .September thirteenth of that year the appellant was indicted for murder in the second degree. The only point presented on the appeal is that as more than five years intervened between the commission of the crime and the finding of the indictment, and as by section 142 of the Code of Criminal Procedure the appellant could not be indicted for- manslaughter after the lapse of five years, he could not be lawfully convicted for that offense under the indictment for murder, notwithstanding the provision of section 141 to the effect that there is no limitation of time within which a prosecution for murder must be commenced..
By section 141 of the Code of Criminal Procedure it is provided that “ there is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.” By section 142 it is provided that “ an indictment for a felony, other than murder, must be found within five years after its commission, except where a less time is prescribed by statute.” And by section 444 it is provided 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.” The appellant was clearly prosecuted for murderhe was not indicted for manslaughter; and the conviction was for an inferior degree of the crime of homicide. Strictly speaking, and in the phraseology of section 444, the appellant has been found guilty of the crime charged against him, not in the degree charged, but in an inferior degree. No express provision of the statutory law has, therefore, been violated, but as the statute is to be liberally construed (People v. Lord, 12 Hun, 282), a strong argument is made that within the spirit of the limitation no conviction should be allowed for an inferior degree of an offense when the time for the prosecution of that degree had expired when the indictment was found charging the main offense.
The authorities are not harmonious. The only case upon the question in this State which has been found is that of People v. Dowling (1 N. Y. Crim. Rep. 529). It is a decision rendered at the Albany Oyer and Terminer in January, 1884, under the former statute (2 R. S. 726, § 37, as amd.. by Laws of 1873, chap. 630), providing that an indictment for murder might be found at any [385]*385time after the death of the person killed, and that other indictments must be found within five years after the commission of the offense. The court held that under an indictment for murder the defendant' might be convicted of manslaughter, notwithstanding more than five years had elapsed between the commission of the offense 'and the finding of the indictment. Hr. Justice Learned said (p. 531): “ But I think I am bound to take the strict language of the statute, and that I have no right to extend it by implication. That statute limited simply the time for finding indictments. Along with that statute stood the section last quoted, that Upon an indictment for any offense consisting of different degrees, the jury may find the accused guilty of any degree of such offense inferior to that charged, or of an attempt to commit such offense. I do not think I have a right, by construction, to interpolate into that section 27 the words ‘ if such indictment be found within the time prescribed for such inferior degree.’ It will be noticed that section 27 also authorizes the finding the accused guilty of an attempt, etc., etc. There are special provisions for punishing attempts. (2 B. S. p. 698, sec. 3.) Gould the court assume to say that under this section 27, on an indictment for murder, whenever found, the jury might not convict of an attempt?”
To the like effect is Clark v. State of Georgia (12 Ga. 350). The Penal Code there provided that an indictment for an assault with intent to murder should be found within four years next after the commission of the offense, and for an assault and battery within two years. The court held that under a timely indictment for assault with intent to murder, the defendant could be convicted of assault and battery, although the statute had run against that charge at the time of the finding of the indictment. Warner, J., said (p. 352): “ In this case the indictment accusing the defendant with having committed the offence of an assault with intent to murder was found and filed, in the proper court, within four years from the time the offence was alleged to have been committed; but the defendant insists that inasmuch as the petit jury, on the traverse of the bill of indictment, found him guilty of an assault and battery only, and more than two yea/rs having elapsed from the time of the commission of the offence and the finding and filing the bill of indictment, [386]*386that he is protected by the statute. The answer is, that the statute applies to the indictment on which the defendant was arraigned and tried, and not to the minor grade of offence for which he might be found guilty on the trial for the higher grade of crime for which the grand jury accused him. The defendant was indicted for an assault with intent to murder; was arraigned and tried on that indictment, and had all the rights and privileges incident to a trial for that grade of offence.- The Statute of Limitations, in our judgment,,as provided by the Penal Code, applied to the offence for which the defendant was indicted, and not to the minor offence of assault and battery, of which he was found guilty on the traverse of that indictmentP
There are many cases decided in other States to the contrary. Among them are People v. Miller (12 Cal. 291); People v. Piceiti (124 id. 361); Riggs v. State of Mississippi (30 Miss. 635); White v. State (4 Tex. App. 488); People v. Burt (51 Mich. 199). (See, also, Bishop Stat. Crimes [3d ed.], § 261d.) In People v. Miller (supra) the reasoning by which the result was reached was admittedly in conflict with the decision in this State in People v. Van. Santvoord (9 Cow. 655), and the case, therefore, need not be regarded as authority here. In White v. State (supra) the decision apparently rested upon the wording of the statute of the State of Texas, and was not' regarded by the court as necessarily conflicting with Clark v. State of Georgia (supra). The eo'urt said in reference to the latter case (p. 491) : “ The Supreme Court held that the Statute of Limitations, as provided by the Penal' Code, applied to the offense for which defendant was i/ndicied, and not the minor offense of assault and battery, of which he was found guilty on the traverse of' that indictment.. The court based their decision solely upon the 35th section of the fourteenth division, of the Penal Code, which we have given. . The difference between that section of their Penal Code and article 185 of our Code of Procedure (Pase. Dig. art. 2652) will be readily seen by comparing them together.” In Riggs v. State of Mississippi (supra) the language of the statute was that “ no person- shall be prosecuted, tried or punished
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Hirsohberg, J.:
The appellant, in an altercation with one Charles Brower, on the 2d day of July, 1886, killed him and hid his body in an unused well. The crime was not discovered until the summer of 1900, and [384]*384on .September thirteenth of that year the appellant was indicted for murder in the second degree. The only point presented on the appeal is that as more than five years intervened between the commission of the crime and the finding of the indictment, and as by section 142 of the Code of Criminal Procedure the appellant could not be indicted for- manslaughter after the lapse of five years, he could not be lawfully convicted for that offense under the indictment for murder, notwithstanding the provision of section 141 to the effect that there is no limitation of time within which a prosecution for murder must be commenced..
By section 141 of the Code of Criminal Procedure it is provided that “ there is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.” By section 142 it is provided that “ an indictment for a felony, other than murder, must be found within five years after its commission, except where a less time is prescribed by statute.” And by section 444 it is provided 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.” The appellant was clearly prosecuted for murderhe was not indicted for manslaughter; and the conviction was for an inferior degree of the crime of homicide. Strictly speaking, and in the phraseology of section 444, the appellant has been found guilty of the crime charged against him, not in the degree charged, but in an inferior degree. No express provision of the statutory law has, therefore, been violated, but as the statute is to be liberally construed (People v. Lord, 12 Hun, 282), a strong argument is made that within the spirit of the limitation no conviction should be allowed for an inferior degree of an offense when the time for the prosecution of that degree had expired when the indictment was found charging the main offense.
The authorities are not harmonious. The only case upon the question in this State which has been found is that of People v. Dowling (1 N. Y. Crim. Rep. 529). It is a decision rendered at the Albany Oyer and Terminer in January, 1884, under the former statute (2 R. S. 726, § 37, as amd.. by Laws of 1873, chap. 630), providing that an indictment for murder might be found at any [385]*385time after the death of the person killed, and that other indictments must be found within five years after the commission of the offense. The court held that under an indictment for murder the defendant' might be convicted of manslaughter, notwithstanding more than five years had elapsed between the commission of the offense 'and the finding of the indictment. Hr. Justice Learned said (p. 531): “ But I think I am bound to take the strict language of the statute, and that I have no right to extend it by implication. That statute limited simply the time for finding indictments. Along with that statute stood the section last quoted, that Upon an indictment for any offense consisting of different degrees, the jury may find the accused guilty of any degree of such offense inferior to that charged, or of an attempt to commit such offense. I do not think I have a right, by construction, to interpolate into that section 27 the words ‘ if such indictment be found within the time prescribed for such inferior degree.’ It will be noticed that section 27 also authorizes the finding the accused guilty of an attempt, etc., etc. There are special provisions for punishing attempts. (2 B. S. p. 698, sec. 3.) Gould the court assume to say that under this section 27, on an indictment for murder, whenever found, the jury might not convict of an attempt?”
To the like effect is Clark v. State of Georgia (12 Ga. 350). The Penal Code there provided that an indictment for an assault with intent to murder should be found within four years next after the commission of the offense, and for an assault and battery within two years. The court held that under a timely indictment for assault with intent to murder, the defendant could be convicted of assault and battery, although the statute had run against that charge at the time of the finding of the indictment. Warner, J., said (p. 352): “ In this case the indictment accusing the defendant with having committed the offence of an assault with intent to murder was found and filed, in the proper court, within four years from the time the offence was alleged to have been committed; but the defendant insists that inasmuch as the petit jury, on the traverse of the bill of indictment, found him guilty of an assault and battery only, and more than two yea/rs having elapsed from the time of the commission of the offence and the finding and filing the bill of indictment, [386]*386that he is protected by the statute. The answer is, that the statute applies to the indictment on which the defendant was arraigned and tried, and not to the minor grade of offence for which he might be found guilty on the trial for the higher grade of crime for which the grand jury accused him. The defendant was indicted for an assault with intent to murder; was arraigned and tried on that indictment, and had all the rights and privileges incident to a trial for that grade of offence.- The Statute of Limitations, in our judgment,,as provided by the Penal Code, applied to the offence for which the defendant was indicted, and not to the minor offence of assault and battery, of which he was found guilty on the traverse of that indictmentP
There are many cases decided in other States to the contrary. Among them are People v. Miller (12 Cal. 291); People v. Piceiti (124 id. 361); Riggs v. State of Mississippi (30 Miss. 635); White v. State (4 Tex. App. 488); People v. Burt (51 Mich. 199). (See, also, Bishop Stat. Crimes [3d ed.], § 261d.) In People v. Miller (supra) the reasoning by which the result was reached was admittedly in conflict with the decision in this State in People v. Van. Santvoord (9 Cow. 655), and the case, therefore, need not be regarded as authority here. In White v. State (supra) the decision apparently rested upon the wording of the statute of the State of Texas, and was not' regarded by the court as necessarily conflicting with Clark v. State of Georgia (supra). The eo'urt said in reference to the latter case (p. 491) : “ The Supreme Court held that the Statute of Limitations, as provided by the Penal' Code, applied to the offense for which defendant was i/ndicied, and not the minor offense of assault and battery, of which he was found guilty on the traverse of' that indictment.. The court based their decision solely upon the 35th section of the fourteenth division, of the Penal Code, which we have given. . The difference between that section of their Penal Code and article 185 of our Code of Procedure (Pase. Dig. art. 2652) will be readily seen by comparing them together.” In Riggs v. State of Mississippi (supra) the language of the statute was that “ no person- shall be prosecuted, tried or punished for any offence, wilful murder, &c., excepted, unless the indictment, presentment or information for the same be found or exhibited within one year next after the offence shall be done or committed.” [387]*387The express provision that no one should be punished for an ofíense after the period for finding an indictment charging it had elapsed, necessarily precluded a conviction therefor. In People v. Burt (supra) the defendant was indicted and convicted of murder. The statute in Michigan is very similar to ours. On appeal'the Attorney-General" confessed error in the reception of evidence against the accused. The court found that in no view of the case could the killing be regarded as more than manslaughter, and discharged the defendant (p. 203) “ inasmuch as, if respondent had been indicted for manslaughter, the prosecution would have been outlawed;” and it was thought that he should not, therefore, be subjected to another trial. The precise point now under consideration was accordingly decided only inferentially, if at all.
This brief reference to the conflicting decisions upon the subject is made because, as has been said,, it involves the only point argued upon the appeal; but we do not feel called upon to decide the question in this case inasmuch as it does not appear to have been properly raised in the court below. The evidence has not been returned in full, but only so much of it as the parties have considered necessary for the purposes of the point stated, together with an agreed statement of facts. The point could only be raised by proof upon the trial under the plea of not guilty (People v. Durrin, 2 N. Y. Crim. Rep. 328, and cases cited), and by some appropriate motion or request to charge. The agreed facts establish that the appellant was within the State and county during the fourteen years of successful concealment of his ■ crime, so that an indictment for manslaughter could have been found and prosecuted within the five years, but no request was made to the learned county judge to charge the jury that, therefore, a conviction could not be had for manslaughter. A motion was made on behalf of the appellant which appears in the case in this form : “ At the close of the whole case and before the judge’s charge, the defendant’s counsel moved that the prisoner be discha/rged upon the ground that he could not be convicted as charged, for the reason that owing to the lapse of time he could not be convicted of manslaughter.” This motion was denied, and very properly so. The appellant was not entitled to a discharge in any view. The indictment contained but a single charge, viz., that of murder in the second degree, and conceding that the appellant [388]*388could not be convicted "of manslaughter owing to the lapse of time, it would not follow that he could not he convicted “ as charged.”
The case further contains the following: “ After the finding of the verdict, the defendant’s counsel moved that on the indictment, on the evidence, the certificate of conviction, and upon the whole record of the case, the defendant he discharged ■ upon the ground that the Statute of Limitations was a bar to any prosecution for the crime of manslaughter.
“ And upon the same grounds in arrest of conviction and of the judgment to be entered thereon.”
This motion was properly denied. It is to be observed that no objection was made to the reception of the verdict and no request made that the jury be instructed even then that such a verdict was improper. The appellant having voluntarily taken advantage of the verdict, was certainly not entitled to be discharged on an arrest of judgment unless it appears that there was not sufficient evidence to convict him of any crime. (Code Grim. Proc. § 470.) But- the question that the offense of which the accused has. been convicted is barred by the Statute of Limitations, is not presented on a motion in arrest of judgment. By section 467 of the Code of Criminal Procedure it is provided that that motion may be founded on any of the defects in the indictment mentioned in section 331. Section 331 relates to but two defects: Fvrst. Want of jurisdiction in the court over the subject of the indictment, and, second, that the facts stated do not constitute a crime, and these objections, it is provided, may be taken at the trial, under the plea of not guilty and in arrest of judgment. In People v. Buddensieck (103 N. Y. 487) it was held that these two objections only are available upon a motion in arrest of judgment. If, however, on such motion all the grounds of demurrer mentioned in section 323 of the Code of Criminal Procedure are to be deemed included, the result will be the same. (People v. Menken, 36 Hun, 90-99.) Clearly the indictment in this case is not demurrable. It charges a crime committed within the jurisdiction and one which is never barred by time.
The judgment should be affirmed.
All concurred, Woodward and Sewell, JJ., however, expressing no opinion on the point discussed by Jenks, J.