In re Garvey

• Decision Date: 02 May 1884
• Citation: 7 Colo. 384,3 P. 903
• Parties: In re GARVEY.
• Court: Colorado Supreme Court

3 P. 903

7 Colo. 384

In re GARVEY.

Supreme Court of Colorado

May 2, 1884

Manslaughter is but a lower degree of murder, and a count properly framed for the higher offense, contains all the essential elements of a count for the minor offense.

Where circumstances have transpired, since an offense was committed, which render a charge of murder, contained in an indictment, inapplicable to the case of the offender, he is not necessarily discharged of manslaughter; the true test being whether the offense for which conviction is sought is included in the crime charged in the indictment, and whether it is sufficiently alleged.

In so far as the terms in an indictment charging murder exceed the description of manslaughter, they do not vitiate it as an indictment for manslaughter, but they may be treated as surplusage.

Where an offender is put upon trial for manslaughter, and the evidence discloses that the killing was perpetrated with malice aforethought, he may be convicted of manslaughter.

Where a person is convicted of murder, when his offense, under the law applicable to his case at the time of the indictment and conviction, was manslaughter, and the judgment is reversed for this error, a second trial may be had, under section 18 art. 2, Const., without putting him twice in jeopardy.

But if when the judgment is annulled for this error, and the cause remanded for further proceedings, the trial court pronounces a judgment of manslaughter upon the first verdict, which was for murder, without submitting the case to another jury, it is error, and a writ of habeas corpus will be granted, under section 3, p. 532, Gen. St., to release the offender from confinement under the sentence.

Petition for writ of habeas corpus.

Wells, Smith & Macon, for petitioner.

The Attorney General, for the People.

BECK C.J.

The petitioner was indicted for the murder of one George Wolf alleged to have been perpetrated on the twenty-third day of May, 1880. The indictment was found by the grand jury on the fifteenth day of March, 1881, on which he was tried at the special November term of the district court of Arapahoe county, 1881, found 'guilty of murder, as charged in the indictment,' and sentenced to imprisonment for life in the state penitentiary. A writ of error to the judgment was prosecuted to this court, and at the April term, 1883, we reversed the judgment and remanded the cause, for the reason that after the commission of the offense the legislature had so amended the statute concerning murder as to alter the situation of the prisoner to his disadvantage, without a saving clause as to the repealed provisions, thus making the law ex post facto as to the case of the petitioner. The petition is demurred to by the attorney general on behalf of the people, and it is stipulated by counsel representing the respective parties that the cause be heard upon this demurrer, and that the record upon the writ of error, of Garvey (the petitioner) v. People, recently heard and determined in this court, together with the judgment of the district court of Arapahoe county, subsequently rendered, denying the motion to quash the indictment, and entering judgment upon the former conviction, be considered as a part of the present petition for writ of habeas corpus. Upon the return of the record into the district court, the petitioner moved to quash the indictment, upon the ground that it was insufficient in law, as appeared from the judgment of reversal. The petition alleges that the court denied the motion to quash, and gave judgment on the same verdict, without any further trial of the prisoner, that he be confined to the state penitentiary for the term of eight years. Upon this judgment the prisoner was committed to the penitentiary, where he still remains in confinement, and to be released from which he has sued out, from this court, the present writ of habeas corpus.

The judgment complained of is a judgment for manslaughter. The grounds of the present application appear to be: First, that the condition of the law applicable to the case of the prisoner at and since the time of his trial for murder has been such that he could not lawfully be tried for any offense charged in the indictment in question; second, that the action of the district court in pronouncing judgment for manslaughter without a trial by jury was without jurisdiction, and therefore null and void.

Upon the first proposition, it is contended that the repeal of the provisions of the law of homicide, above alluded to, quashed the indictment, or left it in the same condition it would have been if no law authorizing an indictment for murder had ever existed; that, if this be true, there could be no record in the district court upon which punishment for any offense charged in the quashed indictment could be inflicted. The repeal of the statutory provisions had the same effect upon the indictment as if a demurrer thereto had been sustained on the ground that it charged no crime. There could not be a conviction of manslaughter, because it was quashed in toto, and not in part only. A demurrer, it is argued, would not have been sustained as to the charge of murder, and overruled as to the charge of manslaughter involved in the allegations constituting murder, but the indictment would have been quashed and the prisoner discharged.

Much prominence is given the proposition that an indictment, or any pleading under a statute, which is repealed after the filing thereof, is, for all purposes, absolutely null and void. The act amending the Criminal Code was approved March 1, 1881; and while it did not go into effect until after the filing of the indictment, on the fifteenth day of March, 1881, still the amendment of the statute did not wholly repeal or annul the indictment. The law of homicide was not repealed. Two sections concerning the punishment of murder were repealed; but no change was made in the provisions relating to manslaughter. This is but a lower grade of the same offense, or a constituent part of it, and necessarily committed in the perpetration of a murder. It is held in this class of cases that a count properly framed for the higher grade or offense, contains all the essential elements of a count for the minor offense. In illustration of this principle, it was said in Com. v. Harney, 10 Metc. 425, that an indictment for murder or manslaughter contains a full and technical charge of an assault and battery.

But it is further contended that the effect of the legislation referred to was to abolish the offense of murder, so far as the petitioner is concerned; and, this being done, he could not be convicted of manslaughter upon this indictment for, while manslaughter is included in every indictment for murder, there was here no indictment for murder, and it cannot be said that one crime contains another, when there is no containing crime, or that an indictment for murder includes manslaughter, when there is no such offense as murder. It would seem to be an extravagant proposition that, as to the petitioner, there is no such offense as murder. As stated in Garvey v. People, supra, there remained unrepealed of the law of homicide, in addition to the provisions relating to manslaughter and its punishment, the sections defining the crime of murder, providing the form of indictment, and imposing the death penalty upon such as should be convicted. True, the change made was such that the petitioner could not be lawfully convicted of murder, but there existed no space of time wherein the crime of murder was not an indictable statutory offense. The statutory definition of the crime of murder was substantially the common-law definition as given by Blackstone and Coke. 4 Bl. Comm. *195. The same was true of the form of the indictment under the statute. It was substantially the common-law form. The statutory definition of manslaughter was the same as defined at common law. Id. *191. The law of manslaughter was amended in 1883, but there was a saving clause as to all cases pending, so that the amendment does not affect the petitioner. Now, counsel for petitioner say: 'It is admitted that in every valid indictment for murder voluntary manslaughter is also contained, but not in an indictment that has been quashed, repealed, or rendered void as to the murder therein charged.' But the indictment, as a pleading, has never been quashed, repealed, or rendered void, either by legislative action or by the order of any court. The fact that circumstances have transpired since the offense was committed which render the charge of murder therein contained inapplicable to the case of the petitioner, does not necessarily discharge him of manslaughter, which is a lower grade of the same offense. His liability to answer for the latter does not depend alone on the principle that it is an included offense, but that it is charged in the indictment as well. We apprehend that the true tests, in such a case, by which to determine the validity of the indictment, are: Is the offense for which the conviction is sought included in the crime charged in the indictment? and, if so, is it sufficiently alleged? Our constitution provides that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, which is nothing more than was required by the rules of the common law. We have seen that the statutory definitions of murder and manslaughter, as the same remained unrepealed after the legislation of 1881, were synonymous with the common-law definitions of the same offenses; and since the statute requires all trials to be conducted according to the course of the common law, except where another mode is pointed out in the Criminal Code, we may safely test the sufficiency...