
    John Sutcliffe v. The State.
    An indictment for manslaughter, drawn after the approved common law precedents, is good in a prosecution under the statute of Ohio for the same offense.
    A statement that the prisoner made an assault and unlawfully discharged a gun, loaded with powder and lead, at the person killed, is a sufficient averment of -the unlawful act designated in the statute.
    After a verdict of guilty, and judgment reversed on account of error in the proceedings, the prisoner is not protected from a second trial before a jury, by the provision in the bill of rights, that “ the accused shall not be twice put in jeopardy for the same offense."
    The original papers and transcripts from the journal entries, both of the supreme court and common pleas, are admissible in evidence as the record, when they have not been carried into the record book.
    The plea of not guilty upon the record, is not reached by the judgment of reversal.
    Though the plea remain upon the record, it is not error to inquire by a jury, whether the prisoner stands mute obstinately, and to cause the plea of not guilty to be entered without his consent.
    It is not error to omit giving notice to the prisoner’s counsel, that he may be present when the verdict is to be delivered by the jury.
    This is a writ of error to the Court of Common Pleas of Jefferson county.
    The plaintiff in error was indicted at the May term, 1849, for killing John Johnson. The indictment contained three counts; the first two charging murder in the second degree — ■ the third, manslaughter, as follows:
    ***** “ That John Sutcliffe, late of said county, on the tenth day of March, in the year of our Lord one thousand eight hundred and forty-nine, at the county of Jefferson aforesaid, in and upon the body of one John Johnson, then and there being, unlawfully did make an assault; and that the said John Sutcliffe, a certain gun then and there charged with gunpowder and fourteen leaden shot, which said gun he, the said John Sutcliffe, in both his hands then and there had and held, then and there unlawfully did discharge and shoot off to, against, and upon, the said John Johnson; and that the said John Sutcliffe, with fourteen leaden shot aforesaid, out of the gun afore said, then and there by force of the gunpowder aforesaid, by the said John Sutcliffe discharged and shot off, as aforesaid, then and there unlawfully did strike, penetrate, and wound the said John Johnson, in and upon the left thigh of him, the said John Johnson, giving to him, the said John Johnson, then and there, with the. fourteen leaden shot aforesaid, so as aforesaid discharged and shot out of the gun aforesaid, by the said John Sutcliffe, in and upon the left thigh of him, the said John Johnson, one mortal wound, of the depth of six inches and of the breadth of two inches, of which said mortal wound the said John Johnson,- on and from the said tenth day of March, in the year aforesaid, until the eleventh day of March, in the year aforesaid, at the county aforesaid, did languish, and languishing did live — on which said eleventh day of March, in the year aforesaid, about the hour of one o’clock in the night, he, the said John Johnson, at the county aforesaid, of the mortal wound aforesaid, died.
    “ And so the jurors aforesaid, upon their respective oaths and affirmations aforesaid, do say that the said John Sutcliffe, him, the said John Johnson, in the manner and by the means last aforesaid, unlawfully did kill and slay, contrary to the form- of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    At the same May term, Sutcliffe was arraigned and plead not guilty. A trial was had, and verdict rendered, that “ defendant was guilty of manslaughter”
    
    Exceptions having been taken to the charge of the court, a writ of error was prosecuted, and at the October term, 1849, of the supreme court, the judgment of the common pleas was reversed, “ and the cause remanded for further proceed ings.*’
    At the November term, 1849, of the common pleas of Jefferson county, the prisoner moved for his discharge, on the ground that he had been once convicted of manslaughter, and could not again be put in jeopardy for the same offense. The prosecutor having entered a nolle prosequi as to the first and second counts of the indictment, the court overruled the motion “ as to the remaining and last count of said indictment.” This ruling is assigned as error.
    The defendant thereupon pleaded * * * * “ that at the May term of said court, in the year 1849, being called do' plead to said indictment, the defendant did plead that he was not guilty in manner and form as charged in said indictment; and of this he put himself upon the country, and the prosecutor did the like ; and a jury of the country being impanneled, sworn and affirmed to try said issue joined as aforesaid on said indictment, upon their oaths and affirmations did say, that the said defendant was guilty of manslaughter: which aforesaid verdict remains of record in said court, in full force, not the least reversed or made void. And he the said John Sutcliffe, in fact saith, that he the said John Sutcliffe, and the said John Sutcliffe so indicted and convicted as last aforesaid, are one and the same person, and not other or different, and that the offense for which he was so indicted, put in jeopardy, tried and convicted, and the offense and indictment on which he is now indicted and put in jeopardy, are one and the same offense, and not other and different; and this he is ready to verify.”
    The replication to this plea alleges that at the May term, 1849, of the common pleas of Jefferson county, judgmen-1 was rendered against Sutcliffe upon the verdict of guilty of manslaughter, specified in the plea, and that he was sentenced, etc. And that at the same term the prisoner tendered his exceptions, which were made part of the record — that a writ of error was allowed — errors assigned on the record — that the state joined in error, and at the October term, 1849, the errors assigned were heard, and the verdict mentioned in the plea and the judgment rendered thereon, and all the proceedings at the trial of the said Sutcliffe, at the May term, 1849, of the common pleas, were, by the judgment of the supreme court, reversed, and the cause remanded for further proceedings, “ as by the record and proceedings thereof still remaining in the supreme court more fully and at large appears, which said judgment of reversal still remains in full force and ■effect, and not in the least reversed or made void; and this the plaintiff is ready to verify by the records of said court.”
    The defendant rejoined, that “ the said verdict in the plea and replication alleged, was not by the said' supreme court of the State of Ohio, as in said replication alleged, reversed; and •of this he puts himself upon the country.”
    A jury was thereupon impanneled to try the issue so joined, .and the state offered in evidence, as the record of the supreme court, the papers set out in the bill of exceptions, as follows:
    1. The transcript of the record of the case in the common pleas, with the assignment of errors thereon, and an allocatur indorsed by Judge Spalding.
    2. The original writ of error.
    3. The citation.
    4. The joinder in error.
    5. A certified transcript of the docket and journal entries ■of the common pleas.
    6. The original bill of exceptions taken on the first trial in the common pleas.
    7. The cost bill in the common pleas.
    8. The journal of the supreme court containing the entry •of the reversal of the judgment of the common pleas in the •case.
    9. The docket of the supreme court, containing the entry •of said case in error.
    10. The common pleas journal, containing the entry of the sentence in this case at May term, 1849, and the order to •suspend its execution.
    No other evidence was offered. The defendant objected to the admission of the papers in evidence, but the objection was overruled, and the defendant excepted.
    No other evidence having been offered, the defendant asked the court to instruct the jury that the papers and entries aforesaid -did not constitute the record -in the supreme court in said cause. This the court refused to charge, but did charge the jury that the papers aforesaid were the record in said cause.
    The court further charged the jury, that the writ of erroi having been prosecuted by the prisoner, and the sentence in the replication specified having been reversed at the instance of the prisoner, he had never been in jeopardy as to the third count of said indictment, and was, in contemplation of law, in the same situation as if he had never been tried upon that count. The charge and refusal to charge were excepted to, and they are now assigned for error.
    The jury having found this issue for the state, the court ordered the prisoner to be arraigned, and to plead to the third count. This the prisoner declined to do, and the court ordered the plea of not guilty to be entered. This plea was then, on motion of the prosecutor, stricken out, and a jury impanneled to try whether the prisoner stood mute obstinately, etc., under the statute. The jury found that he stood mute obstinately, and the plea of not guilty was entered by order of the court. To the arraignment, the entry of the plea, and the striking out, the prisoner 'objected; and this, with the impanneling of the jury, and the entry of the plea, is here assigned for error.
    A jury was then impanneled to try the issue of not guilty, put in by order of the court to the third count, but having been unable to agree, they were discharged by order of the court. At the same time another jury was impanneled to try the issue, who “ found the prisoner guilty in manner and form as he stands indicted.”
    On the trial of this issue, the prisoner asked the court to charge the jury that in order to find the defendant guilty of manslaughter, the jury must find,
    1. That the prisoner killed Johnson in a sudden quarrel. Or,
    2. That the prisoner killed Johnson without intending to kill him, whilst the prisoner was in the commission of some unlawful act.
    3. And that if they found there was no quarrel, and that the prisoner killed Johnson intentionally, they must find the prisoner not guilty of manslaughter.
    4. That if the jury found there was no quarrel, and that the prisoner fired the gun, knowing it to be loaded with powder and shot, against the person of Johnson, with intent to do him thereby a bodily injury, but not with intent to kill, that the crime would not be manslaughter.
    5. That if the jury found there was no quarrel, and that the prisoner fired the gun knowing it to be loaded, against the person of Johnson, with intent to do him thereby a bodily injury, they must find that the prisoner was at the time in the comission of some unlawful act, other than the said shooting, or they could not convict him of manslaughter.
    As to. the first three points, the court charged as requested by the prisoner, but as to the fourth and fifth points, charged that such was not the law. And did charge that if the jury found, as stated in the fourth point, that the prisoner would be guilty of manslaughter. And as to the fifth point, the court charged the jury, that the unlawful firing of the loaded gun at the person of the deceased, with intent to do the deceased thereby a bodily injury, was an unlawful act, and that it was not necessary that the prisoner should have been at the time engaged in the commission of an unlawful act other than said shooting, and that upon such proof the jury might convict him of manslaughter. The refusal to charge, and the charge as given, were-excepted to, and are here assigned for error.
    A motion for a new trial was made by the prisoner, assigning amongst other causes:
    5th. That the said verdict was received at two A. M., of the 6 th December, in the presence of the prisoner, but not in the presence of his counsel, and that the counsel for the prisoner were not sent for, nor informed of the taking of said verdict, arid had no opportunity to poll the jury.
    6th. That the said verdict was received without the polling of said jury, and without any opportunity to the prisoner’s counsel to have the jury polled.
    
      The motion for new trial was overruled and judgment passed against the defendant.
    To reverse this judgment, this writ of error is prosecuted, and the errors assigned are :
    1st. That the third count charges no crime punishable by the laws of Ohio.
    2d. That the court erred in overruling the motion for the prisoner’s discharge.
    3d. That the court erred in admitting to the jury the papers and entries in the bill of exceptions mentioned, and in charging the jury that such papers were the record in said cause.
    4th. That the court erred in charging the jury that the defendant had not been once in jeopardy for the crime charged in said third count.
    5th. That the court erred in arraigning the defendant, and requiring him to plead to the third count.
    6th. That the court erred in refusing to charge as requested by the prisoner, and in the charge given to the jury.
    7th. That the court erred in refusing the new trial for the causes assigned in prisoner’s motion.
    
      Stanton $ McQoolc, for plaintiff in error.
    
      S. Stanbery (attorney general), for defendant.
   Avert, J.

Is the indictment good, upon which the prisoner has been convicted ?

It contained at first three counts, but at the trial the prosecutor having entered a nolle upon two of them, he proceeded against the prisoner only upon the third. As a former jury in the case had returned a verdict against him for manslaughter only, which was, in effect, a verdict of not guilty upon the two first counts; upon these, it is quite clear, the prisoner could not afterwards be put to trial. He could be prosecuted, if at all, only upon the count for manslaughter. His counsel urge that this third count is defective, and if it be found upon examination to be so, the judgment .must be reversed. The objection taken to the indictment is, that it does not charge the defendant with the crime of manslaughter, or with any offense defined by our law. There is no common law crime in this state, and we, therefore, look always to the statute to ascertain what is the offense of the prisoner, and what is to be his punishment upon conviction. The count under examination describes the crime of manslaughter at the common law; it is drawn after the approved forms adopted in the prosecution of such crimes, and is without defect as a common law indictment.

In deciding upon the objection raised, it will of course be proper to look at the crime of manslaughter as it existed under the common law. It is there defined in the following language: u- The unlawful killing of another, without malice, either express or implied ; which may be either voluntarily, upon a sudden heat, or inadvertently, but in the commission of some unlawful act.” 4 Black. Com. 191.

The word used as descriptive of the offense in the definition here given, is introduced into our statute, where it is denominated manslaughter, and where the entire description of the offense is embraced in these words, to wit: that if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act; every such person shall be deemed guilty’of manslaughter. Swan’s Stat. 229. It is evident that the legislature had in their view, while framing the enactment above quoted, the crime of manslaughter, as well understood at the common law. They have adopted it in substance, and almost in form. If then the same rule were admitted applicable to an indictment upon a charge defined by statute, as upon a defense defined by the common law, there could be no objection to the present count. What is affirmed in this statute of manslaughter, of the character which this count was intended to reach, except that the slayer must be in the commission, at the time, of some unlawful act ? The crime is declared to be complete “ without malice,” that is, where there exists no malice. Is it necessary to argue the negative form, that the act was done without malice ? If there is in the indictment no averment touching the malice, will not the inference be necessarily drawn that the act was without malice ? We think so. The same may be said of the other Word, “ unintentionally.”

It is claimed for the plaintiff in error, that there is no allegation in the count of the unlawful act designated in the statute. It was necessary to allege in the indictment that the prisoner was engaged in the commission of some unlawful act. And this allegation, it appears to the court, is distinctly made in that part of the indictment which charges the prisoner with an assault upon the person killed, and unlawfully discharging and shooting off at him a loaded gun. This sufficiently describes an unlawful act. And we are of the opinion that the count objected to is good, and charges the crime of manslaughter, as described in our statute. It may be further observed, that the statute defines and prescribes three descriptions of homicide: murder in the first, and in the second degree, and manslaughter. In the first, the act of killing is of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate some one of the higher crimes specified; in the second, the act is purposely and maliciously done, but without deliberation and premeditation, and in the third, the act constituting manslaughter is as above described. Now it is held, that upon a count for even the highest species of the crime, murder m the first degree, a verdict may be returned for manslaughter, and a valid judgment against the prisoner may be rendered upon such verdict. In that case, there is not a description of the offense, as it is found in the statute; but to sustain the proceeding, a rule of the common law is applied, and the count which describes the greater offense, is supposed to include the less. The court therefore find that there is no error in .the form of the indictment.

The plaintiff in error alleges, that the second trial to which he has been subjected in this case, is in violation of that provision of the bill of rights in the constitution of the state, which declares that in criminal prosecutions the accused shall not be twice "put in jeopardy for the same offense. He sought to avail himself of the privilege before he was put upon his trial upon the plea of not guilty, first by a motion to be discharged, and afterwards by the plea of former conviction. But the determination of the court was against him in both instances, and this is assigned as error. It is not claimed for the plaintiff in error that a conviction upon -a defective indictment, when the judgment has been afterwards reversed, can be set up as bar to another prosecution. It is conceded by his counsel that in such a case the prisoner may be put again upon his trial. In such a case he says, according to the construction of all the courts, the prisoner never was in jeopardy. But he claims that by a .trial before a lawful jury, upon a good indictment, and the finding of a verdict by that jury, the prisoner has been put in jeopardy, and cannot therefore be again prosecuted for the same offense. It is not readily perceived how any real distinction can be drawn between the cases. In both, it is but an error in the proceedings; in the first the error is found in the indictment; in the second the error is committed by the court, it may be in admitting or rejecting testimony, in charging or refusing to charge the jury, or in determining some other one of the various legal questions raised in the progress of the cause. If it be that when a party is convicted on a bad indictment for murder, he may be tried again because his life was not in jeopardy ; it may with equal truth be said, under our system of laws, and since the allowance of bills of exceptions and writs of error in criminal prosecutions, he was not in jeopardy in case any other substantial error is found in the proceedings. For in this state any other error is as fatal as that which appears in the indictment, and as effectually secures him against the consequences of a conviction. The prisoner is held liable to be tried again upon the supposition that he never was in jeopardy. This upon principle and as a correct rule of law, may be allowed to govern courts in the trials of criminals. It will operate to subject them to a trial upon the merits, instead of allowing them to escape upon a mere technical defense. But though in a legal sense, they may be said never to have been in jeopardy, when the indictment was bad, yet this is not always true in point of fact, doubtless in some instance elsewhere as well as here, criminals have been tried -and convicted under a defective indictment, and have afterwards suffered the punishment of the law without ever seeking or obtaining a reversal of the judgment. ■

Still the law of the state, though it holds a party, if the first judgment against him has been reversed, to abide the issue of a second trial, must nevertheless be allowed the credit of humane maxims and principles which are continually employed in behalf of prisoners upon trial. Their rights are regarded with scrupulous care, rules and presumptions are made to operate in their favor. If the plaintiff in error could succeed upon the point which has just been considered, he would himself escape and avoid a second trial, because he had once before been tried for the same offense upon a good indictment; but new trials, often the means of safety to the accused, would then be at an end, for it would be contrary to the bill of rights to allow a second trial under a good indictment. But the statute which first authorized the reversal of judgments in criminal cases, did not regard the second trial which might result from the reversal, as a violation of the bill of rights; nor have the courts so regarded it, for they have always acted upon a different principle, and uniformly directed a second trial whenever the case seemed to require it.

Upon the trial of the question before the jury of a former conviction, complaint is made that improper evidence was received ; instead of the record, all the original papers, transcripts -of the journals of the supreme court and common pleas, etc., were admitted by the court. In this the court only followed a settled and long established practice, and even at the present term there has been occasion in more than one instance to give a sanction to the principle. Such papers and entries are good evidence both in civil and criminal cases, when no formal record has been made.

The court ordered the prisoner to be arraigned and to plead to the third count of the indictment, and this is alleged as an error.

The reversal in the case necessarily put an end to the judgment, and the verdict on which the judgment had been founded ; but according to no principle could it be made to reach the prisoner’s plea. It is true, the first verdict was in effect a return of not guilty upon the two first counts; but when the cause was remanded to the common pleas it stood, as to the third count, precisely as when first at issue, and before any error had occurred. The reversal did not extend to the plea. And if the entry of a nolle prosequi as to the first and second counts, the plea interposed by the defendant of a former conviction, together with the singular issue made up for the jury, could have the effect to set aside the first plea of not guilty, then, by a direct authority in the statute, (Swan’s Stat. 726,) the court had power to impannel a jury, to try whether the prisoner was standing mute obstinately; and if they should so find, to direct the plea of not guilty to be entered, and to proceed with the trial. In all this no error is perceived.

After a verdict against the prisoner on the plea of not guilty, a, motion was made by him for a new trial, for several reasons, and amongst the rest, because the verdict was received at 2 A. M., of the 6th of December, in the presence of the prisoner, without his counsel, and without notice to the counsel, and without an opportunity to poll the jury. There is no reason for supposing that the liberty of polling the jury was denied to the prisoner. Nor is there any law making it imperative, that the counsel of the prisoner should be sent for, to be present upon the delivery of the verdict by the jury; though care ought to be taken to secure to the prisoner the benefit of his presence upon so important an occasion. There might, however, be cases in which it would be proper to dispense with the presence of the counsel; and a discretion must be left to the court of common pleas upon this subject.

The court are of the opinion, upon the whole case before them, that there is no error in the record and proceedings of the court of common pleas; and their judgment is affirmed.  