Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-10

MIN Wllle 6uBdBCu III the commission
of some felony, is proper, and con-
stitutes a verdict of murder in tba
third degree, under Wis. Rev. St,t
Chap. 1914, Secs 2, citing State
Hammond. And conviction for in
voluntary manslaughter in the com
mission of an unlawful act NAV no
had under an indictment charging
voluntary manslaughter; citing Is
ham v. State, 3S Ala. 213.
Where verdict was OF mans
slaughter in the second degree. No
Such degree of manslaughter belng
specified by the statute, conviction
for manslaughter was sustained. the
words relating to the degree being
rejected as surplusage. l McClain ON
Criminal Law, Sec. 392.
The verdict should be regarded
from the standpoint of the jury's in.
tention when this can be ascertained
If consistent with legal principles
such effect should be given to their
findings as will most nearly conform
to their intent, and should be con-
strued and applied reasonably in the
light of all the proceedings. edl
Am. G Eng. Enc. of Law, 29, D. 1922
What then Is the meaning of this
verdict of the jury, finding the de-
fendant guilty Of involuntary man
slaughter? Mr. Wharton defines the
crime as follows: Involuntary man
slaughter Is where one doing an un-
lawful act, not felonlous or tending
to great bodily harm, or doing a law
full act without proper caution or re-
quisite skill, undesignedly kills an
other. According to the old writer's
1t is where death results uninten-
tionally, so far as the defendant Is
concerned, from an unlawful act on
his part, not amounting to felony. or
from a lawful act negligently per
formed" = = > Wharton on
Homicide, Sec. 6.
In Words and Phrases, Vol. 4, n.
1852, we find Involuntary as an
piled to mansluaghter, means that
the killing was committed by acct
dent, or without intention to take
llfe; citing United States v. Outer
bridge (U. S. q Fed Cas-. 800, 391.
We find here several definitions OF
involuntary manslaughter taken from
various opinions and different stat
utes. Many, II not all of which are
Identical with the crime mentioned
in Secs. 1898 and 1902, l.. o. L.
The trial court instructed the Jury
as to manslaughter, according to the
provisions of Secs. 1897 and 1902. L.
o. L.! and in addition thereto in
part as follows: "A homicide is man
! slaughter, even though committed in
doing a n act lawful in itself, IL the
defendant was guilty of gross or
culpable negligence, and such negli-
gence was the cause of the death
Mr Justic Moore in discussing
kindred question, the description of
a crime in an indictment, in the case
OF State V. Ayers, 40 Or g., makes
this apt illustration in regard to do.
inning a crime: 'If our statute . +
had delineated the commits
sion OF an offense and prescribed
punishment as follows: If any per
son shall purposely, and of deliber-
ate and premeditated malice. kill
another such person, upon conviction
thereof, shall be punished with death
the elements of the common law
could undoubtedly be examined 70
ascertain the name anciently given
10 Jhe classification of such crime"
cltlng state " DeWolfe, 67 Neb. 321
W. N. w. 746). Applying this rule
and illustration to the case at bar
~ Woulu seem proper for the jury in
Ihelr verdict, to designate a crime by
well known name as defined by the
.teeAt-Wrlter, courts and statutes; and
II such crime is included in the in
ulcthent as well as in the statute
then IL Is clear what the jury in
tended, and judgment upon sucb
verdict would not be void
IN Spriggs V. Commonw ealth. CKvl
90 3 W. 1887 it is shown that the
statute or that state subdivided the
common law offense of manslaught-
er, by carving out of it the statutory
crime Of voluntary manslaugbter
,oI wnlcn a different penalty was
prescribed than for involuntary man
slaughter the latter being dealt with
as common-law offense. The iury
III rendering its verdict, swung the
p peHuulum the other way from that in
Ihe case now under consideration.
m ana round defendant guilty of man
'iaughter without designating whetb-
Ct voluntary or involuntary. as they
olioulu ~ nave done under the law in
'nat staIe. In that case, as in this
!. sounsel Ior defendant asked for mis-
ulsci2rge and did not ask for new
ildl: Inc court, while clearly of the
opinion that there was Oreiudicial or
ror in the instructions, said,
technical. rules must ovist ond
must ,s. De applied in cases which come
literally and logically within their
scope What we decide is that thov
WIN not be applied to cases not with
~ Vheir puryiew, and that il Is NOT
rosI'al TO construe a verdict that
~ i."n mas Deen guilty of two offenses
~ when the court instructed tbe
luiy enormously, either as to oon
'.''uenI y. tt elements of the offense. or as
~ Lue punishment to be inflicted In
oucu cases this court has granted
e. erSal' 1t has awarded the defen-
'ent new trial, but it has NOT dis
,narged him from custody as acouit
,o, The judgment in this
ia was clearly within the iurisdic-
- Vi Ine court upon the offense
,noast 1oa seu IN the indictment. Nor is It
IbuoeSsaLy bo s.o' Tor us to consider whether
Nv ne tetdlct may be helped or cured
y amendment. We think the in
'ructlon laws erroneous. and if
e,erSal had been sought. it would
ave Deen granted But the defen-
.nr, u naS 1 carefully precluded himself
oIl tnat relief, in the effort IN oh