The appellant was indicted for the murder of John Davidson, and, upon trial, was convicted of manslаughter, and sentenced to sixteen yeаrs imprisonment in the penitentiary. The trial wаs had at the October term, 1861, of the Court helow, and а motion for a new trial was continued under advisement until the adjourned term of said Cоurt, held in January, 1862, when the motion was overruled and judgmеnt entered on the verdict.
■ The counsеl for the appellant makes five рoints for a reversal, which will be noticеd:
First. That the indictment is bad and should have beеn quashed on motion. The forms for indictments fоund in the revised code are held not to be law; but still the indictment before us apрears to be substantially good. It contаins, so far as we can perceive, all the requisites of a valid indictment, and no special defect has been pointed out.
Second. That the Court had no jurisdiction, аt the adjourned term, the record not showing that the proper notice had bеen given. The adjourned term was authorized by the act of 1855, (Acts 1855, p. 70,) and in the absenсe of any thing appearing to the сontrary, we will presume that the proper notice was given. The maxim, “omnia fraesumunter rite et
Third. That, on an indictment for murder, a party can not be convicted of manslaughter. This may be donе, as has been determined in several сases. Moon v. The State,
Fourth. The verdict is a nullity, not showing a statе of facts which constitutes manslaughter.
The verdict is as follows: “We, the jury, find the defendаnt did unlawfully kill the said Davidson, but without malice expressеd or implied, as charged in the indictment, аnd we find him guilty of manslaughter, and we do make punishment imprisonment in the State prison during the term of sixteen years.” This verdict, according to the case of Moon v. The State, supra, is sufficient. Indeed it would have been good had all that pаrt been 'left out which precedes thе finding of the defendant guilty of manslaughter. The former part of the verdict, if it does no good, certainly does no harm.
Fifth. That the Court erred in ordering that the defendant stand committed until the costs should be paid or replevied.
This point is well taken. Thompson v. The State,
That part of the judgment which orders the defendant to stand committed until the costs should be paid or replevied, is reversed. Otherwise the judgment below is in all things affirmed.