[727]*727Opinion of the court by
JUDGE DURELLE
Affirming.
Appellant was indicted for the murder of Mamie Rogers, found guilty of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years at hard labor. The testimony in the case requires little consideration. The witnesses for the Commonwealth show an entirely different case from that shown by the witnesses for the defense. The Commonwealth’s case is that the accused was in love with the girl who was shot, and was very jealous of the intentions of another young negro, named Futrell; that he had threatened to kill the girl if she went with the latter; that they were sitting together, with her sister,- on the porch of her brother’s house, on perfectly friendly terms; that the two women started to go across the street to a hall where a ball was being given; that he asked Mamie, with an oath, if she was going to see Futrell; that she jokingly said she was, whereupon he drew from his breast a pistol, and deliberately aimed at and shot Mamie as she stood just outside the gate. The case of The-accused is that he and the girl were on the best of terms; that he was not jealous; that he had taken the pistol from her trunk to prevent one Scott, a friend of her sister’s from getting possession of it, as Scott was drunk and trying to obtain it for the purpose of raising a disturbance; that he-had the pistol swinging on his finger by the trigger guard, — the pistol being of such a make that pulling the trigger would not explode it, unless at the same time the butt, which contained a spring, was gripped by the hand; that as the two girls started to go, and were standing within two or three feet of him, the pistol slipped, and was about, to fall, when he, automatically and unconsciously, to prevent its falling, gripped it by the butt, and it was accidentally discharged, and killed the girl. It may be mentioned that the testimony of the [728]*728physicians as to the course of the ball to some extent corroborates the accused’s statement of the relative positions of the parties.
Counsel for the accused deliberately and purposely refrained from making a motion for a new trial, but did move the court “to render a judgment, upon the verdict returned by the jury, discharging him from custody, and as acquitted of the crime charged against him in the indictment.” There is no question here of oversight or omission by counsel. The case was practiced throughout in the most approved style, by able counsel, and the action taken was for the definite purpose of presenting for decision this question of pure law. Was the judgment in this case void, and is the power of the courts over this persecution ended? The whole contention for appellant is based upon this proposition: The jury found the defendant guilty of manslaughter. Manslaughter, at common law, was a recognized crime. By the Virginia and Kentucky Statutes it has been divided into the statutory offense of voluntary manslaughter, punishable by confinement in the penitentiary not less than 2 nor more than 21 years (Kentucky Statutes, section 1150), and involuntary manslaughter, which remains a common-law offense, for which no punishment has been prescribed by statute, and which is therefore punishable only by fine and imprisonment in the county jail. There no longer remains any such offense as manslaughter, under the laws of this State. There is no statute defining or punishing such an offense, and what is left of the' common-law offense known by that name is involuntary manslaughter. Under an indictment for murder, a conviction may be had of murder, voluntary manslaughter, or involuntary manslaughter. Therefore, when the jury found the defendant guilty of manslaughter, they found him guilty of an offense which did [729]*729not exist, and by their finding acquitted liim of tlie offenses included in the charge in the indictment, viz., murder, voluntary manslaughter and involuntary manslaughter. It would follow, if this contention is sustained, that the court erred in overruling the motion for discharge, and that we must reverse that order. The authority chiefly relied on is Conner v. Com., 13 Bush., 714, where, upon an indictment for murder, conviction was had, under the instructions of the court, for the offense of killing by wilfully striking, etc., —a new offense created by statute, being the offense now described in section 1151, Kentucky Statutes. It was held that, under sections 262 and 2G3 of the Criminal Code of Practice, this statutory offense was not a degree of the offense of homicide; that, therefore, under indictment for murder, the defendant could not be found guilty of this offense; and that a conviction of the statutory offense under an indictment for murder was equivalent to an 'acquittal of the crime of murder and all subsidiary crimes included in it, and the court erred in not discharging the prisoner on his motion. In the elaborate opinion by Judge Cofer, the case of Terrell v. Com., 13 Bush., 253, is overruled upon-this point, and tbe contention of appellant in this case as to the degree of murder under the common law as modified by the Kentucky Statutes is fully sustained. In Buckner v. Com., 14 Bush, 601, in an opinion by Judge Hines, the degrees of homicide, viz., murder, voluntary manslaughter and involuntary manslaughter, were recognized, and the case reversed for failure to give an instruction upon involuntary manslaughter, which omission was held to be pre judicial. So, in Mitchell v. Com., 7S Ky., 219, the judgment was affirmed, in an opinion by Judge Hines, though an instruction as to involuntary manslaughter had not been given; the court holding that as there had already been an [730]*730instruction “as to tlie law of voluntary manslaughter, — intentional killing without malice — and as the jury found the killing to have been done with malice, the instruction as to involuntary manslaughter could not have been of any service to appellant.” Tn Trimble v. Com., 78 Ky., 176, the définition of “involuntary manslaughter” given in Conner v. Com. was approved; and it was held that, where the facts justified it, an instruction- as to the law of involuntary manslaughter was proper and necessary. The court in that case distinctly held that involuntary manslaughter was punishable by fine or imprisonment in jail — one or both— at the discretion of the jury; referring to manuscript opinion in Brown v. Com., November 15, 1879. In Bush v. Com., 78 Ky., 268, the judgment was reversed for failure to give an instruction upon involuntary manslaughter. In Smith V. Com., 93 Ky., 318. (14 R., 260) 29 S. W., 229, the, judgment was reversed; the court, in an opinion by Judge Lewis, holding: “There ought to have been given an instruction on the subject of involuntary manslaughter, punishment for which is fine and imprisonment.” In Com. v. Matthews, 89 Ky., 287 (11 R., 505) 12 S. W., 333, the appeal was by the Commonwealth; but the court, through Judge ITolt, prescribed the instruction upon -involuntary manslaughter which should be given where the evidence tended to show an accidental killing, resulting from the careless «handling of a gun. In Wood v. Com. (9 R., 382) 7 S. W., 391, the court, through Judge Holt, held that the circumstances did not justify the giving of an instruction as to involuntary manslaughter.
The cases cited seem amply to sustain the proposition that under our law the common-law offense of manslaughter has been subdivided by carving out of it the statutory crime of voluntary manslaughter, and leaving involuntary man[731]*731slaughter to be dealt with as at common- law.
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[727]*727Opinion of the court by
JUDGE DURELLE
Affirming.
Appellant was indicted for the murder of Mamie Rogers, found guilty of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years at hard labor. The testimony in the case requires little consideration. The witnesses for the Commonwealth show an entirely different case from that shown by the witnesses for the defense. The Commonwealth’s case is that the accused was in love with the girl who was shot, and was very jealous of the intentions of another young negro, named Futrell; that he had threatened to kill the girl if she went with the latter; that they were sitting together, with her sister,- on the porch of her brother’s house, on perfectly friendly terms; that the two women started to go across the street to a hall where a ball was being given; that he asked Mamie, with an oath, if she was going to see Futrell; that she jokingly said she was, whereupon he drew from his breast a pistol, and deliberately aimed at and shot Mamie as she stood just outside the gate. The case of The-accused is that he and the girl were on the best of terms; that he was not jealous; that he had taken the pistol from her trunk to prevent one Scott, a friend of her sister’s from getting possession of it, as Scott was drunk and trying to obtain it for the purpose of raising a disturbance; that he-had the pistol swinging on his finger by the trigger guard, — the pistol being of such a make that pulling the trigger would not explode it, unless at the same time the butt, which contained a spring, was gripped by the hand; that as the two girls started to go, and were standing within two or three feet of him, the pistol slipped, and was about, to fall, when he, automatically and unconsciously, to prevent its falling, gripped it by the butt, and it was accidentally discharged, and killed the girl. It may be mentioned that the testimony of the [728]*728physicians as to the course of the ball to some extent corroborates the accused’s statement of the relative positions of the parties.
Counsel for the accused deliberately and purposely refrained from making a motion for a new trial, but did move the court “to render a judgment, upon the verdict returned by the jury, discharging him from custody, and as acquitted of the crime charged against him in the indictment.” There is no question here of oversight or omission by counsel. The case was practiced throughout in the most approved style, by able counsel, and the action taken was for the definite purpose of presenting for decision this question of pure law. Was the judgment in this case void, and is the power of the courts over this persecution ended? The whole contention for appellant is based upon this proposition: The jury found the defendant guilty of manslaughter. Manslaughter, at common law, was a recognized crime. By the Virginia and Kentucky Statutes it has been divided into the statutory offense of voluntary manslaughter, punishable by confinement in the penitentiary not less than 2 nor more than 21 years (Kentucky Statutes, section 1150), and involuntary manslaughter, which remains a common-law offense, for which no punishment has been prescribed by statute, and which is therefore punishable only by fine and imprisonment in the county jail. There no longer remains any such offense as manslaughter, under the laws of this State. There is no statute defining or punishing such an offense, and what is left of the' common-law offense known by that name is involuntary manslaughter. Under an indictment for murder, a conviction may be had of murder, voluntary manslaughter, or involuntary manslaughter. Therefore, when the jury found the defendant guilty of manslaughter, they found him guilty of an offense which did [729]*729not exist, and by their finding acquitted liim of tlie offenses included in the charge in the indictment, viz., murder, voluntary manslaughter and involuntary manslaughter. It would follow, if this contention is sustained, that the court erred in overruling the motion for discharge, and that we must reverse that order. The authority chiefly relied on is Conner v. Com., 13 Bush., 714, where, upon an indictment for murder, conviction was had, under the instructions of the court, for the offense of killing by wilfully striking, etc., —a new offense created by statute, being the offense now described in section 1151, Kentucky Statutes. It was held that, under sections 262 and 2G3 of the Criminal Code of Practice, this statutory offense was not a degree of the offense of homicide; that, therefore, under indictment for murder, the defendant could not be found guilty of this offense; and that a conviction of the statutory offense under an indictment for murder was equivalent to an 'acquittal of the crime of murder and all subsidiary crimes included in it, and the court erred in not discharging the prisoner on his motion. In the elaborate opinion by Judge Cofer, the case of Terrell v. Com., 13 Bush., 253, is overruled upon-this point, and tbe contention of appellant in this case as to the degree of murder under the common law as modified by the Kentucky Statutes is fully sustained. In Buckner v. Com., 14 Bush, 601, in an opinion by Judge Hines, the degrees of homicide, viz., murder, voluntary manslaughter and involuntary manslaughter, were recognized, and the case reversed for failure to give an instruction upon involuntary manslaughter, which omission was held to be pre judicial. So, in Mitchell v. Com., 7S Ky., 219, the judgment was affirmed, in an opinion by Judge Hines, though an instruction as to involuntary manslaughter had not been given; the court holding that as there had already been an [730]*730instruction “as to tlie law of voluntary manslaughter, — intentional killing without malice — and as the jury found the killing to have been done with malice, the instruction as to involuntary manslaughter could not have been of any service to appellant.” Tn Trimble v. Com., 78 Ky., 176, the définition of “involuntary manslaughter” given in Conner v. Com. was approved; and it was held that, where the facts justified it, an instruction- as to the law of involuntary manslaughter was proper and necessary. The court in that case distinctly held that involuntary manslaughter was punishable by fine or imprisonment in jail — one or both— at the discretion of the jury; referring to manuscript opinion in Brown v. Com., November 15, 1879. In Bush v. Com., 78 Ky., 268, the judgment was reversed for failure to give an instruction upon involuntary manslaughter. In Smith V. Com., 93 Ky., 318. (14 R., 260) 29 S. W., 229, the, judgment was reversed; the court, in an opinion by Judge Lewis, holding: “There ought to have been given an instruction on the subject of involuntary manslaughter, punishment for which is fine and imprisonment.” In Com. v. Matthews, 89 Ky., 287 (11 R., 505) 12 S. W., 333, the appeal was by the Commonwealth; but the court, through Judge ITolt, prescribed the instruction upon -involuntary manslaughter which should be given where the evidence tended to show an accidental killing, resulting from the careless «handling of a gun. In Wood v. Com. (9 R., 382) 7 S. W., 391, the court, through Judge Holt, held that the circumstances did not justify the giving of an instruction as to involuntary manslaughter.
The cases cited seem amply to sustain the proposition that under our law the common-law offense of manslaughter has been subdivided by carving out of it the statutory crime of voluntary manslaughter, and leaving involuntary man[731]*731slaughter to be dealt with as at common- law. The term “manslaughter” has therefore become a generic term, covering two specific offenses, or degrees of homicide, punishable, the one under the statute, by confinement in the penitentiary, and the other, under the common law, by fine and imprisonment in jail. The common-law learning of the text-writers upon the offense of manslaughter can have no place in the definition of the two degrees of homicide which have been carved out of manslaughter by the effect of our statute, however apt such learning may have been under the ancient practice, when the punishment of both grades was a matter resting in the discretion of the judge. We are well aware that there are opinions by this court in which this distinction seems to have been wholly overlooked. In the opinion by Judge Williams in Sparks v. Com., 3 Bush., 111, 96 Am. Dec., 196, the court affirmed a judgment of guilty under ari instruction upon manslaughter; citing 1 Russell, Crimes, p. 636, which correctly gives the commondaw definition of “manslaughter,” -but makes no distinction between the voluntary and the involuntary grades thereof. So, in Chrystal v. Com., 9 Bush., 669, the offense was homicide resulting from the recklessly careless use of a loaded pistol; and the opinion by Chief Justice Hardin sustained an instruction on manslaughter; citing 2 Whart. Am. Cr. Law, section 100-1-, as to the common-law definition. The case of York v. Com., 82 Ky., 360 (6 R., 344) follows the cases of Sparks and Chrystal; the court seemingly overlooking the Conner case and the cases in 78 Ky., then recently decided. The case of Murphy v. Com., 15 R., 215 (22 S. W., 649), sheds no light on the ^question before us. The instruction given, and there considered, was upon the subject of voluntary manslaughter.
There are therefore three cases in which an instruction [732]*732upon manslaughter, without the limiting adjective, was sustained, and one of these three was decided since the decision in the Conner case. -Tt will be seen, however, that the great weight of authority in this State sustains the proposition that the giving of such an instruction is erroneous, and that the three cases mentioned must be regarded as practically overruled. TVe are clearly of opinion than an instruction upon involuntary manslaughter should have been given in the case at bar, and that the failure to give it was prejudicial error. This question, however, is not before us, except as an incident to the question raised by the motion to discharge.
Thus far we concur with counsel's contention. But does it follow that we must reach the conclusion which was reached in the Conner case? There the jury found the accused guilty of a crime which was not a degree of homicide, and it was held that that verdict, under an indictment for murder’, was equivalent to a verdict of acquittal of all the offenses of homicide. In the case at bar, however, the jury found the appellant guilty (under an erroneous instruction) of manslaughter — a term which covers two degrees of homicide — and fixed his punishment at the statutory penalty for tlie higher grade. It was as if the jury had found the accused guilty of murder and voluntary manslaughter, and fixed lxis punishment at death, under an instruction which justified such a finding. However erroneous a record might be which disclosed such a condition, we could not constrxxe such a verdict to be an acquittal; for it not only did not find the accused not guilty of any of the crimes included in the charge of murder, but in fact found him guilty of two of them. The Conner case is one in which the court carried to its logical conclusion a highly technical rule of law. The effect of its application was appax*ently to de[733]*733feat the ends of justice. We ace not criticising that opinion. Technical rules must exist, and must he applied in cases which come literally and logically within their scope. What we decide is that they will not be applied to cases not within tlieir purview; and that it is not logical to construe a verdict that a man has been guilty of tuvo offenses into a verdict of not guilty of any offense. There are numerous cases in which the court instructed the jury erroneously, either as to constituent elements of the offense, or as to the punishment to be inflicted. In such cases this court has granted a reversal. It has awarded the defendant a new trial, but it has not discharged him from custody as acquit. Nor does the case before us come within the rule laid down by Sir. Cooley (Const. Lira., 336), and the case of Ex parte Lange, 18 Wall., 176, 21 L. Ed., 872, as to judgments beyond the jurisdiction of the court rendering them, or forbidden' by the Constitution. The judgment in this case was clearly within the jurisdiction of the court upon the offense charged in the indictment. Nor is it necessary for us to consider wdiether the verdict may be helped or-cured by intendment. We think the instruction was erroneous, and, if a reversal had been sought, it would have been granted. But the defendant has carefully precluded himself from that relief, iu the effort to obtain total immunity. He has taken his choice.
For the reasons given, w7e are of opinion that the order overruling the motion for a discharge was not erroneous, and it is affirmed.
Whole court sitting.
Petition for rehearing by appellant overruled.