
    KEEFE against THE PEOPLE.
    
      Court of Appeals; June Term,
    
    1869.
    Indictment for Murder. — Conviction of Second Degree.
    Upon an indictment containing a single count for murder, drawn as re-quired by the common law, a verdict convicting the accused of murder in the second degree is legal, and authorizes a judgment convicting the accused, and inflicting the punishment imposed by the statute for that offense.
    Phe true construction of 2 Rev. Stat., 702, § 27,—which allows a conviction of an inferior degree to that charged in the indictment,—is, that where the act for which the accused is indicted is the same act for which he is convicted, a conviction of a lower degree is proper, although the indictment contain averments constituting an offense of the highest degree of the crime in question, and omits to state the particular intent and circumstances characterizing the lower degree of the same crime.
    In the absence of any exceptions to the evidence, or to the charge, showing error, the appellate court will not presume, in such a case, that the accused has been convicted of any other act than that charged, or that there was any material variance, in respect to the means employed, from those charged in the indictment.
    Writ of error.
    The prisoner was tried at the Hew York general sessions, in Hovember, 1865, upon an indictment for the murder of John Abrahams, in the city of Hew York. The indictment was in the common law form.
    The jury acquitted the prisoner of murder in the first degree, and convicted him of murder in the second degree, whereupon he was sentenced to the State prison for life.
    The indictment, which was in the common law form, tyas as follows:
    
      “ That William Keefe, late of the seventeenth ward of the city of New York, in the county of New York, aforesaid, on the fifth day of June, in the year of our Lord one thousand eight hundred and sixty-five, at the ward, city, and county aforesaid, with force and arms in and upon one John Abrahams, in the peace of the people of the State then and there being willfully, feloniously, and of his malice aforethought, did make an assault.
    “And that he, the said William Keefe, with a certain knife which he the said William Keefe in his right hand then and there had and held, the said John Abrahams in and upon the abdomen of him the said John Abrahams, then and there willfully, feloniously, and of his malice aforethought, di 1 strike, stab, and cut, giving unto the said John Abrahams then, and there with the knife aforesaid, in and upon the abdomen of him, the said John Abrahams, one mortal wound, of the breadth of one inch, and of the depth of two inches, of which said mortal wound the said John Abrahams at the ward, city, and county aforesaid, from the said fifth day of June in the year aforesaid, until the sixth day of June in the same year aforesaid, did languish, and languishing did live, and on which sixth day of June, in the year aforesaid, the said John Abrahams at the ward, city, and county aforesaid, of the said mortal wound did die.
    “And so the jurors aforesaid, upon their oath aforesaid, do say that he the said William Keefe, the said John Abrahams in the manner and form, and by the means aforesaid, at the ward, city, and county aforesaid, on the day and year aforesaid, willfully, feloniously, and of his malice aforethought, did kill and murder against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.”
    The prisoner pleaded not guilty, and after trial the jury found as their verdict, “that the said William Keefe is not guilty of murder in the first degree, but guilty of murder in the second degree above charged in the form aforesaid, as by the indictment aforesaid, is above alleged against him.”
    Thereupon the court sentenced the prisoner to the State prison and hard labor, for life.
    The supreme court having affirmed the judgment upon a writ of error, the cause was now brought before the court of appeals, by a writ of error addressed to the supreme court.
    
      William F. Kintzing, for the"plaintiff in error.
    I The jury erred in convicting the plaintiff in error of murder in the second degree, under the indictment, and the judgment must be set aside, because the indictment did not set forth that, at the time of the commission of the homicide, the prisoner was engaged in the commission of a felony, which is the statutory definition of the crime of murder in the second degree (Fitzgerrold v. People, 37 N. Y., 413 ; 2 Rev. Stat., Edm. ed., 677, § 5 ; Dedieu v. People, 22 N. Y., 180).
    II. The judgment should be reversed, and the plaintiff in error discharged from further imprisonment, on the ground that he has been once in jeopardy under the indictment, and cannot be subjected to another trial (Shepherd v. People, 25 N. Y., 406; Fitzgerrold v. People, 37 Id., 413, 685 ; S. C., 4 Abb. Pr. N. S., 68).
    
      Samuel B. Garvin, district-attorney;
    Cited Mason v. People, 26 N. Y., 202; People v. Tredway, 3 Barb., 470 ; People v. Taylor, 3 Den., 91; Fitzgerrold v. People, and Shepherd v. People, supra.
    
   Grover, J.

The question arising upon the record in this case is, whether a verdict convicting the accused of murder in the second degree, upon an 'indictment containing a single count for murder, drawn as required by the common law, is legal, and whether such verdict authorizes a judgment convicting the accused, and inflicting the punishment imposed by statute for that offense.

In Fitzgerrold v. People (37 N. Y., 413) it was held by this court that such an indictment was sufficient to warrant a judgment convicting the accused of the crime of murder in the first degree, under the statute of 1862 (Laws of 1862, 369). In the same case it was further held that murder in the second degree under that statute consisted in the killing of a human being without a design to effect death, by a person engaged in the commission of a felony, other than that of arson in the first degree.

It is insisted by the counsel for the plaintiff in error that the accused cannot be convicted of murder in the second degree, unless the indictment charges that the death was effected while the accused was engaged in the commission of a felony as specified in the statute, and that the absence of such an averment in the present indictment is fatal to the judgment.

The counsel relies upon the case of Dedieu v. People (22 N. Y., 178) as sustaining this position. In that case it was held that the accused, upon an indictment for arson in the first degree, charging him with having in the night time feloniously, &c., set fire to the dwelling house of another, there being at the time some human being therein, was improperly convicted of arson in the third degree, upon proof of his feloniously having set fire to goods contained in such house with' intent to defraud an insurance company which had issued a policy upon such goods, the building not having been at all ignited.

In that case the question arose upon exceptions taken by the defendant to the evidence, and also to the charge. The case was decided correctly. The act constituting the crime of which the defendant was convicted was not the same act for which he was indicted, nor was the intent charged the same. He was indicted for having set fire to a dwelling house with intent to burn the same. He had not set fire to the house at all. The proof was-that he had set fire to certain goods contained in the house, with intent to destroy such goods, to defraud the insurance company. The act and the intent, so far from "being inclentical, were plainly separate and distinct, and upon this ground the case was decided. Had there been no bill of exceptions in the case, and had the record merely shown that the jury had rendered a verdict against the defendant, convicting him of arson in the third degree, upon which judgment had been rendered, the case would have been analogous to the present. It would not then have appeared that the defendant had been convicted upon proof of an act different from that for which he had indicted.

It was sought by the counsel for the people to sustain the conviction in Dedieu v. People, upon the statute (2 Rev. Stat., 702, § 27).

That section provides that upon an indictment for any offense consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.”

The court held that the statute did not apply to the facts of that case, for the reasons above stated. In addition to such reasons, others were assigned, in some of which, to their full extent, I cannot concur, as I think their application would render the statute practically nugatory. As an illustration, it is said in substance that the statute applies to cases only where the indictment for the higher offense includes all the averments necessary to constitute the lesser, with the addition thereto of certain facts essential to the higher, and the latter are unproved,—then only that the defendant may by virtue of the statute be rightly convicted of the lesser offense. If this is the only effect of the statute, it is merely declaratory of the common law, as is shown in the opinion in the case itself, in regard to a conviction for a murder upon an indictment for petit treason. The language of the statute clearly admits of a more extended application, and I apprehend that such was the intention in its enactment. Various criminal acts were made, by the chapter in question, offenses of the same general name, hut differing in degree and in the punishment to be inflicted, by the circumstances under and the intent with which they were committed, such as forgery, arson, burglary, &c. I think the true construction of the statute is, that where the act for which the accused is indicted is the same act for which he is convicted, the conviction of a lower degree is proper, although the indictment contains averments constituting the offense of the highest degree of the species of crime, and omits to state the particular intent and circumstances characterizing a lower degree of the same crime.

If this be the true construction, it follows that under an indictment for murder in the' first degree the accused may be convicted of any degree of murder or manslaughter for the unlawful killing of the identical person charged, by the identical means charged in the indictment. This would not include a case where the person killed was not the same as charged in the indictment, nor where the means of effecting the death were materially variant from those the indictment charges.

Under this construction, where the indictment charges-the murder in the first degree, the accused could not be-convicted of manslaughter in the third degree, by proving that the death had been effected by a mischievous animal, of which the defendant was owner, and which he had willfully suffered to go at large, &c., for the reason that the criminal act charged, would be different irom that-offered in evidence ; but this point could only be presented for review upon exceptions taken to the evidence or to the charge to the jury. Then upon an indictment for murder in the first degree, a judgment convicting the defendant of manslaughter in the third degree must be sustained, in the absence of any exception showing that evidence had been erroneously admitted, or some error committed in the charge. In the absence of any such exception the record would fail to show that the accused had been convicted of any other act than that charged, or that there was any material variance in the means employed from those charged in the indictment, hut would show that the intent of the accused in effecting the death, and the attendant circumstances, were different from those charged, which difference constituted the offense of manslaughter in the third degree, instead of murder in the first degree.

In the present case the record shows that the person killed, and the means of effecting the death of which the defendant was convicted, were identical with the charge contained in the indictment; but that the killing was without a design to effect death, and therefore not murder in the first degree, hut was done while the defendant was engaged in the commission of a felony other than arson in the first degree, and, therefore, under the ^statute of 1862, murder in the second degree.

It is a general rule in criminal pleading that when ’the act done is criminal only when done under a particular state of facts or circumstances, the existence of such 'facts and circumstances must he averred in the indictment. But the section of the statute under consideration has, in effect, provided that when the indictment is for a crime consisting of different degrees, depending upon 'the intention of the accused, and the circumstances under which the act was committed, and the indictment charges such act to have been committed with the intent .and under the circumstances constituting the highest degree of the crime, the. defendant may he convicted of any lower degree; and, consequently, when there is a ■failure of proof of any fact essential to a conviction of the higher degree, proof may he given of facts constituting a lower degree of the same crime, although the latter facts .are not charged in the indictment; and the defendant may, upon such proof, he rightly convicted of the lower ! degree.

In the present case the presumption from the record' is, that the prosecution proved the killing of John Abrahams by. the .accused, by the means charged in the indictment, but failed to prove that the act was done with a premeditated design to effect his death, hut proved that it was done while the accused was engaged in the perpetration of a felony. He was, therefore, rightly convicted, if the evidence of the latter fact was admissible under the indictment.

We have seen that the statute authorizing a conviction of a lower degree of the same crime, upon an indictment for a higher degree, makes the evidence authorizing such conviction competent, otherwise the statute would be inoperative. I the more readily accept this construction, as I cannot see that the accused can be prejudiced thereby. He is informed by the indictment of the particular crime charged, and of the means used in its perpetration, and that it was committed with the intent, and under the circumstances, constituting the highest degree of that crime. He, therefore, comes to his trial, prepared to show, if he can, not only that he is not guilty of the particular degree charged, as well as that he is not guilty of any lower degree of the same crime. If acquitted upon the indictment, or convicted in any lower degree than that charged, he will find no obstacle in pleading his acquittal or conviction in bar to any subsequent indictment for the same crime. It exposes him to no danger of a conviction of the crime in any degree not warranted by the evidence. This he may readily guard against by calling attention to it in the charge to the jury ; and in case any error is committed by the judge in this respect, he can correct such error, upon review, by taking the proper exceptions.

My conclusion is that the judgment should be affirmed.

All, the judges concurred.

Judgment affirmed.  