
    Supreme Court—Appellate Division—Third Department.
    May 2, 1900.
    PEOPLE v. PATRICK H. MAINE.
    (51 App. Div. 142; 98 St. Rep. 579.)
    Manslaughter—Indictment.
    An indictment which accuses defendant of the crime of manslaughter in the first degree, and states that “ with, force and arms feloniously, willfully and unlawfully did assault one James Murphy with a sharp knife, the same being a dangerous weapon * * * (and) the said Murphy did strike, cut, stab and wound * * * and did * * * inflict one mortal wound of which * * * the said James Murphy did * * * die,” sufficiently charges the crime of manslaughter.
    2. Same.
    The omission to declare in the indictment the ameliorating features which reduce homicide to the grade of manslaughter, by stating it to have been produced “ without a design to effect death,” or “ in the heat of passion,” will not vitiate the indictment when the homicide is charged as a crime committed under circumstances which preclude the idea of its being justifiable or excusable.
    Appeal by the defendant, Patrick H. Maine, from a j'udgment of the County Court of Chemung county in favor of the plaintiff, rendered on the 1st day of February, 1899, upon the verdict of a jury convicting him of the crime of manslaughter in the second degree, and also from orders granted on the 1st day of February, 1899, denying the defendant’s motion for a new trial and for a stay of judgment.
    The indictment accused the defendant of the crime of “ manslaughter in the first degree, ” and so named the offense in the indictment. The indictment then alleged the facts as follows: “ With force and arms feloniously, willfully and unlawfully did assault one James Murphy with a sharp knife, the same being a dangerous weapon * * * (and) the said James Murphy did strike, cut, stab and wound * * * and did * * * inflict one mortal wound of which * * * the said James Murphy did * * * die. ”
    The indictment was not demurred to and the plea was, “ Not guilty. ”
    Reynolds, Stanchfield & Collin and Richard H. Thurston, for the appellant.
    Franklin F. Aldridge, District Attorney, for the respondent.
   Kellogg, J.

The motion for a new trial in the County Court brings up for review exceptions and alleged errors committed upon the! trial to the prejudice of defendant, and the motion in arrest of judgment under section 331 of the Code of Criminal Procedure authorizes the inquiry as to the indictment, “ Do the facts therein stated constitute a crime ? ” Not in this case the crime named, “ Manslaughter in the first degree, ” but any crime.

I do not see in the record before this court any error, committed upon the trial, subject to serious criticism, except the admission of testimony of the witness Knipp as to what was said by John Maine, not apparently in the hearing of defendant, “ Come down to the corner under the light and I will give you all you want, or what you want. This seems to have been said to Frank Bower and to James Murphy, who was killed, and bears upon the intent in the minds of these three persons' in getting together, but not .upon the intent of the defendant, nor upon his knowledge of the intent of the others in their assembling. If the testimony in the case left the question of intent on the part of the defendant anyway in doubt, or the situation disclosed to the defendant after he arrived upon the scene in any doubt, or if the testimony, leaving out this statement, did not beyond all doubt abundantly show the defendant guilty of a crime of a grade not less than manslaughter, I thing it would be the duty of the court, for this error, to grant a new trial. But, as the evidence stands, this piece of evidence becomes immaterial. With this testimony out, no other conclusion on the part of the jury was possible, and it cannot be claimed that this in any degree influenced them.

The other question, “ Do the facts stated in the indictment constitute a crime ? ” must be, I think, answered in the affimative. If this indictment had not characterized the crime described by the stated facts as “ manslaughter, ” and had used the words with “ malice aforethought, ” “ malice prepense ” or “ premeditated design, ” it would have been a sufficient statement of facts and intent to charge murder in the first degree. Fitzgerald v. People, 37 N. Y. 413; People v. Conroy, 97 id. 62. The absence of apt words characterizing the acts to have been done with “ malice aforethought, ” and the declaration that the crime intended to be charged is “ manslaughter, ” is a sufficient declaration that the homicide was accomplished without design to effect death. Here a homicide is charged, and charged to have been committed under" circumstances which preclude the idea of its being either justifiable or excusable, and the stated facts are insufficient to make it murder in either the first or second degree, and that seems to be the exact definition of “ manslaughter. ” Section 188 of the Penal Code provides: “ In a case other .than one of those specified in sections one hundred and eighty-three, one hundred and eighty-four and one hundred and eighty-five (murder in first and second degrees), homicide, not being justifiable or excusable, is manslaughter. ”

The omission to declare in the indictment the ameliorating features which reduce homicide to the grade of manslaughter, by stating it to have been produced “ without a design to effect death, ” or “ in the heat of passion, ” will not vitiate the indictment when the homicide is charged as a crime committed under circumstances which preclude the idea of its being justifiable or excusable. The whole function of a proper indictment is seen to be present when it complies with the requirement of section 284 of the Code of Criminal Procedure, when “ the act or omission, charged as the crime, is plainly and concisely set forth. ” When “ the act or omission, charged as the crime, is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.

The judgment and conviction should be affirmed and the case remanded to the County Court for further action.

All concurred.

Judgment of conviction affirmed.  