By the Court, S. B. Strong, P. J.
The indictment in this case is in the common law form for manslaughter, without specifying any facts to designate the degree, under the provisions of the Revised Statutes. The counsel for the prisoner supposes that the omission is fatal to the validity of the indictment, or that at any rate it does not sufficiently charge the crime of manslaughter in the first degree, and that therefore the conviction in this case, which was for that offence, cannot be sustained.
It was decided by the Court for the Correction of Errors, in the case of The People v. Enoch (13 Wend., 176), that the alteration in the Revised Statutes relative to what should constitute the crime of murder did not require any change in the form of the indictment. One reason why the indictment should not be changed from the common law form, urged by me on the argument of that cause, was the danger of an acquittal of a person proved to have committed the crime on the ground of variance, particularly when the means used must be conjectural. The danger was evinced in the subsequent case of The People v. White, where the indictment particularized the charge so as to bring it within one of the three specifications in the Revised Statutes, and the accused, who was found to have been guilty of the crime under another specification, escaped on the ground of variance. (24 Wend., 540.) The principle on which the case of The People v. Enoch was decided is applicable to cases of manslaughter. The statutes do not expressly require any change in the form of the indictment, nor should there be any where it might facilitate the escape of criminals on technical grounds. Under the common law form, the pri[383] prisoner might be convicted of the offence in any degree according to the evidence.
The judge charged the jury that if they were satisfied from the evidence that the deceased had come to her death by reason of blows or injuries inflicted upon her, not in any self-defence, nor otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree. It appeared, from the testimony of the physicians who conducted a post mortem, examination, that a large superficial vein had been ruptured, causing effusion of blood on the brain, and that the death had resulted from the consequent compression of the brain. The defendant and the deceased, who was his wife, were both intoxicated, and had a violent quarrel in their room at a late hour in the evening, during which so much violence was used that the woman screamed several times, and their son, who was a small boy, exclaimed, “Pa. don’t kill ma!” A lodger in the room immediately over the one occupied by them went into their apartment the next morning, where she found the deceased lying on the floor insensible. There was one cut on her head, which was bleeding, and there were bruises under her ear and on her head. The prisoner said: “Look here! this thing has fell out of bed and cut her head with a hair pin or some other damned thing.” Two witnesses, one a cousin of the prisoner and the other not related to him, testified that they went to the room occupied by the prisoner and his wife at about nine o’clock the same evening; that the prisoner was absent but his wife was at home; that when first seen by them she was sitting in a chair; that, when addressed by one of them, she arose and advanced a step, then reeled and fell back on a stove; that they lifted her up and put her on a chair; that she bled from the back of her head, where one of those witnesses saw a cut; that they lifted her on the bed; that she did not speak, and they left her shortly afterwards, and before her husband returned. The physicians spoke of but one cut upon her head, and [384] both supposed that the effusion of blood from that caused her death. It seems to me, from all this, that it is at least as natural to infer that the death was caused by the woman’s intoxication and her fall upon the stove as that it was effected by the violence of her husband, and I am at a loss to discover anything which warranted the jury in their conclusion that the prisoner had killed his wife. However, we cannot reverse the judgment on the ground that the jury made a mistake on a question of fact. That this cannot be done, either by the court before which the trial was had or the tribunal to which the case might be carried on a bill of exceptions, was settled long ago, and we are not at liberty to overturn a rule as old as the common law itself without statutory authority. Others may attempt to do that, but we shall adhere to our own solemn determination, that the rule of the common law must prevail until it is abolished by our own laws. (The People v. The Dutchess Oyer and Terminer, 2 Barb., 282.)
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By the Court, S. B. Strong, P. J.
The indictment in this case is in the common law form for manslaughter, without specifying any facts to designate the degree, under the provisions of the Revised Statutes. The counsel for the prisoner supposes that the omission is fatal to the validity of the indictment, or that at any rate it does not sufficiently charge the crime of manslaughter in the first degree, and that therefore the conviction in this case, which was for that offence, cannot be sustained.
It was decided by the Court for the Correction of Errors, in the case of The People v. Enoch (13 Wend., 176), that the alteration in the Revised Statutes relative to what should constitute the crime of murder did not require any change in the form of the indictment. One reason why the indictment should not be changed from the common law form, urged by me on the argument of that cause, was the danger of an acquittal of a person proved to have committed the crime on the ground of variance, particularly when the means used must be conjectural. The danger was evinced in the subsequent case of The People v. White, where the indictment particularized the charge so as to bring it within one of the three specifications in the Revised Statutes, and the accused, who was found to have been guilty of the crime under another specification, escaped on the ground of variance. (24 Wend., 540.) The principle on which the case of The People v. Enoch was decided is applicable to cases of manslaughter. The statutes do not expressly require any change in the form of the indictment, nor should there be any where it might facilitate the escape of criminals on technical grounds. Under the common law form, the pri[383] prisoner might be convicted of the offence in any degree according to the evidence.
The judge charged the jury that if they were satisfied from the evidence that the deceased had come to her death by reason of blows or injuries inflicted upon her, not in any self-defence, nor otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree. It appeared, from the testimony of the physicians who conducted a post mortem, examination, that a large superficial vein had been ruptured, causing effusion of blood on the brain, and that the death had resulted from the consequent compression of the brain. The defendant and the deceased, who was his wife, were both intoxicated, and had a violent quarrel in their room at a late hour in the evening, during which so much violence was used that the woman screamed several times, and their son, who was a small boy, exclaimed, “Pa. don’t kill ma!” A lodger in the room immediately over the one occupied by them went into their apartment the next morning, where she found the deceased lying on the floor insensible. There was one cut on her head, which was bleeding, and there were bruises under her ear and on her head. The prisoner said: “Look here! this thing has fell out of bed and cut her head with a hair pin or some other damned thing.” Two witnesses, one a cousin of the prisoner and the other not related to him, testified that they went to the room occupied by the prisoner and his wife at about nine o’clock the same evening; that the prisoner was absent but his wife was at home; that when first seen by them she was sitting in a chair; that, when addressed by one of them, she arose and advanced a step, then reeled and fell back on a stove; that they lifted her up and put her on a chair; that she bled from the back of her head, where one of those witnesses saw a cut; that they lifted her on the bed; that she did not speak, and they left her shortly afterwards, and before her husband returned. The physicians spoke of but one cut upon her head, and [384] both supposed that the effusion of blood from that caused her death. It seems to me, from all this, that it is at least as natural to infer that the death was caused by the woman’s intoxication and her fall upon the stove as that it was effected by the violence of her husband, and I am at a loss to discover anything which warranted the jury in their conclusion that the prisoner had killed his wife. However, we cannot reverse the judgment on the ground that the jury made a mistake on a question of fact. That this cannot be done, either by the court before which the trial was had or the tribunal to which the case might be carried on a bill of exceptions, was settled long ago, and we are not at liberty to overturn a rule as old as the common law itself without statutory authority. Others may attempt to do that, but we shall adhere to our own solemn determination, that the rule of the common law must prevail until it is abolished by our own laws. (The People v. The Dutchess Oyer and Terminer, 2 Barb., 282.)
The principal question in this case arises on the other exception taken by the counsel for the prisoner to that part of the charge of the court which I have above quoted. The court instructed the jury, in effect, that if the prisoner was guilty of any crime it was manslaughter in the first degree. The Revised Statutes (2 R. S., 661) provide that the killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of any other, while such other is engaged: First. In the perpetration of any crime or misdemeanor not amounting to a felony; or, Second. In an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be deemed guilty of manslaughter in the first degree. If the prisoner killed his wife by violent means (and he must have done so, if at all), no doubt he was engaged in the perpetration of an assault and battery, which is a misdemeanor. But that was a part of the act itself which constituted the principal charge. The statute [385] evidently contemplated some other misdemeanor than that which is an ingredient in the imputed offence, otherwise that part of it relating to an attempt to perpetrate a misdemeanor-would be wholly nugatory.- Where an act becomes criminal from the perpetration, or the attempt to perpetrate some other crime, it would seem that the lesser could not be a part of the greater offence. Derivative character must necessarily spring from a distinct, although it may be a connected source. I agree with Judge Bronson in thinking that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (The People v. Rector, 19 Wend., 605.) But the statute requires something more than the commission, or the attempt to commit, a crime or misdemeanor in order to constitute an undesigned killing of a human being manslaughter in the first degree. It must be under circumstances which would render the killing murder at the common law. Now, it was never the rule that the undesigned killing of a human being, in the heat of passion, excited by intoxication, by a violent assault and battery (and that was all that could be inferred from the evidence in this case) constituted the crime of murder. Something more was requisite. In order to constitute the crime of murder, where the killing is unpremeditated, and not by a person engaged in the commission' of a felony, but simply by assaulting another, the beating must be in a cruel and unusual manner, as where a master corrected a servant with an iron bar, and a schoolmaster stamped on his scholar in a tender part of his body, so that each of the sufferers died. In such cases the danger is so palpable that the act evinces a depraved mind, regardless of human life. There may" be instances so strongly marked that the court may assume their character -in' its instructions to- the jury. But they are very rare, and certainly this is not one of them. If the [386] misdemeanor had been of that distinctive character which would have allowed the application of the provisions of the statute relative to manslaughter in the first degree to the transaction, it would still have been an important question whether the beating was in such a cruel and unusual manner as evinced a depraved mind, regardless of human life. That would have been a question of fact which should have been submitted to the jury with proper instructions as to the law, and should not have been, as it was, assumed by the court.
The conviction must be reversed and proceedings remitted for a new trial.
Emott, J., dissented.
Conviction reversed.