Camp v. State , 25 Ga. 689 ( 1858 )

By the Court.

McDonald, J.

delivering the opinion.

[1.] The first ground in the motion in arrest of judgment, cannot be sustained. The conclusion of the indictment follows the form prescribed by the statute. Besides, it is an exception which goes merely to the form of the indictment, and cannot be sustained in arrest of the judgment of the Court. Cobb’s N. Dig. 833.

[2.] The argument, in support of the second and third gounds of the motion, is that manslaughter cannot be com-[2.] The argurn~nt, ii~ suppert of the second and third grounds of the motion, is that manslaughter caunox be corn-

[3.] The fourth ground in the motion is substantially, that the bill of indictment charges the plaintiff in error, with the offence of manslaughter, when the body of the indictment makes a case of murder. The defendant had been arraigned and pleaded to the bill as it was. He pleaded not guilty.

There is ancient authority for saying that if a grand jury return a true bill for manslaughter on a bill for murder, it is void, but the reason assigned for it, is not very satisfactory, viz: That the grand jury are not to distinguish between murder and manslaughter, for it is only the circumstance of malice that makes the difference, and that may be implied by the law -without any facts at all. Bac. Ab. Indictment, Letter O. The'same reason would prevent a jury from finding a true bill for either murder or manslaughter on a bill having two counts, one charging murder and the other manslaughter, for they would have to distinguish between them in that case.

There is an authority as old as the time of Sir Matthew Hale, that if a bill of indictment be for murder, and the grand jury ignore it as to murder, but find a true bill for manslaughter, the words which give to the charge the' distinctive character of murder may be stricken out in the presence of the jury, and leave so much as makes the bill stand barely for manslaughter. Ib.

The same authority says, the safest way is to deliver the grand jury a new bill for manslaughter. But whatever of doubt hangs over this question, in the English Courts, there is none here. The grand jury accused the prisoner of manslaughter. The body of the indictment makes a charge of murder. If the-grand jury had found a bill throughout for murder, on the trial, the petit jury might have acquitted the prisoner of murder and found him guilty of manslaughter. The prisoner is not prejudiced by the change of a single word, manslaughter for murder. He is rather benefitted, for he cannot be found guilty of murder. He was arraigned on the indictment as it stands and pleaded not guilty. If he •wished to demur to the indictment for any matter not affecting the real merits of the charge, he ought to have done it on arraignment, before pleading the general issue. It is too late after pleading the general issue, and 'undergoing a trial thereon; for no motion in arrest of judgment can be sustained for'any matter not affecting the real merits of the offence charged in the indictment.

[4.] In regard to the last ground taken in the motion in arrest of judgment, we will remark that the law does not require the jury to find their verdict in the language of the code, although the verdict of this jury is very nearly in the language of the code. They find the prisoner guilty of manslaughter in the commission of a lawful act, which probably might produce such a consequence, in an unlawful manner. This is all sufficient to enable the Court to pronounce the sentence of the law advisedly, upon the convicted defendant. It would have been an act of supererogation to have added any other part of the definition of involuntary manslaughter in the verdict, as that the killing was not intended, for the finding of manslaughter, is a finding of the absence of intention.

Judgment affirmed.