
    Richard R. Heward vs. The State of Mississippi.
    An indictment for murder embraces within itself an indictment for manslaughter ; and the statute which declares that no person shall be prosecuted for any offence, other than murder, and certain other excepted ones, unless the indictment be found within one year after the offence has been committed, will apply to the case of a prisoner indicted for murder, but who has been guilty,of manslaughter only, precisely as though he had been indicted for the latter offence.
    A motion in arrest of judgment can only be sustained for matter apparent on the face of the record ; if, therefore, an indictment charge an offence to have been committed within the year previous to its finding, the judgment cannot be arrested because, in point of fact, it appeared in proof that it was not so committed.
    Where a prisoner was indicted for murder, it was held erroneous in the court below to refuse to instruct the jury that, if the offence did not amount to murder, but only to manslaughter, and were committed more than a year before the finding of the indictment, they must acquit the defendant.
    It seems that it is incumbent on the state, if a prosecution be not begun within the year, in order to sustain the prosecution, to show that the prisoner either fled or absconded in order to avoid the prosecution ; in either of which cases the limitation does not, as stipulated in the proviso to the act, apply.
    In error from the circuit court of Carroll county.; Hon. Francis M. Rogers, judge.
    
      John M. Duffield, for plaintiff in error.
    
      D. C. Glemi, attorney-general, contra.
   Per cui'iam.

At the May term, 1849, of the circuit court of Carroll county, the prisoner was indicted for the murder of William T. Durham. The offence was charged in the indictment as having been committed on the 22d of May, 1849, which was only two days before the finding of the indictment. The jury found the prisoner guilty of manslaughter in the third degree, and he thereupon moved in arrest of judgment, because the offence was committed twelve months before the finding of the indictment.

The statute of limitations declares that no person “shall be prosecuted, tried, or punished for any offence, wilful murder, arson, forgery, counterfeiting, and larceny excepted, unless the indictment, presentment, or information for the same be found or exhibited within one year next after the offence shall be done or committed. Hutch. Code, 1004. The form of the indictment, being for murder, does not preclude the prisoner from the benefit of this statute. An indictment for murder embraces within itself an indictment for manslaughter, and the statute will apply precisely as though the prisoner had been indicted for manslaughter alone.

But how is this objection to be brought up on a motion in arrest of judgment 1 Such a motion can only be sustained for matter apparent on the face of the record. If the offence be laid in the indictment more than twelve months before the time it is found, then perhaps, the objection might be reached by such h motion. The statute forbids prosecution, trial, or punishment, and the court should not punish if the defect appears upon the record. But it does not in this instance. The indictment lays the offence on the 22d of May, and it was found on the 24th of the same month. True, the bill of exceptions states that it was in proof that the offence was committed more than twelve months before the finding of the indictment; but the bill of exceptions was taken to the overruling the motion; the fact did not otherwise appear of record. The error of the court, on such a motion as this, must be apparent from what existed on the record when the decision was made, and not from what was placed on it afterwards.

The most that we can do is to award a new trial, because the court refused to charge the jury that if the offence did not amount to murder, but only to manslaughter, and was committed more than a year before the finding of the indictment, they must acquit the defendant. The charge requested propounds the law correctly, and should have been given.

The statute contains a proviso, that its provisions shall not extend to any one who has fled or absconded to avoid a prosecution ; but no question was raised on the exception. Perhaps it would have been incumbent on the state to bring up the exception, but in what manner this should be done we need not now decide.

Judgment reversed and cause remanded.  