Lyon, J.
Murder in the third degree is the unlawful killing of a human being, without any design to effect death, by a person engaged in the commission of a felony. R. S., ch. 164, secs. 1 and 2 (Tay. Stats., 1826, §§ 1, 2). The verdict in this ease is, therefore, that the defendant did not design or intend the death of the deceased, but that he unlawfully killed him while he (the defendant) was engaged in the commission of some felony. It was doubtless entirely competent and proper for the jury to negative the proposition that the defendant intended to kill the deceased ; and if the evidence justified the finding that the defendant was engaged in committing a felony when he killed the deceased, the conviction of murder in the third degree is right; otherwise not.
The term “felony,” as used in the statute above cited, must be construed to mean an offense for which the offender, on conviction, shall be liable to be punished by imprisonment in a state prison. R. S., ch. 172, sec. 14; Nichols v. The State, ante, p. 303.
■ At the time he killed the deceased, was the defendant engaged in committing an offense liable to be thus punished? If *319the defendant did not intend to kill the deceased, there is no testimony tending to show that the shooting of the deceased was done with any felonious intent, other than an intent to inflict personal injuries upon him. Those personal injuries which are not inflicted with an ulterior criminal intent (as an intent to rob, or to murder, and the like), but for which the perpetrator is liable to be punished by imprisonment in the state prison, are fully enumerated in the following statute : “If any person, with malicious intent to maim or disfigure, shall cut or maim the tongue, put out or destroy an eye, cut or tear off an ear, cut or slit or mutilate the nose or lip, or cut off or disable a limb or member of any person,” such person shall be punished, etc. R. S., ch. 164, sec. 31 (Tay. Stats., 1830, § 31). It is not sufficient that the defendant was engaged in inflicting a great bodily injury upon the deceased; but in order to render the act punishable by imprisonment in the state prison, it is essential that the defendant should have been engaged (at the time the homicide was committed) in committing one óf the_specific injuries enumerated in the above statute.
Keeping in mind the fact that the defendant did not design to kill the deceased, what is there in the manner in which his death was produced to warrant the inference that the defendant intended to inflict any one of such specific injuries? We find nothing therein, or in any of the circumstances of the case, which shows or tends to show any such specific intent. Doubtless it may reasonably be inferred that the defendant was intending to commit an assault and battery upon the deceased, and was in the act of so doing, when he killed the latter. In such case a conviction for manslaughter in the first degree might be sustained. Rowan v. The State, 30 Wis., 129" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/rowan-v-state-6600910?utm_source=webapp" opinion_id="6600910">30 Wis., 129.
The foregoing views are fully sustained by the court of appeals in Foster v. The People. 50 N.Y., 598" court="NY" date_filed="1872-12-24" href="https://app.midpage.ai/document/foster-v--the-people-3589233?utm_source=webapp" opinion_id="3589233">50 N. Y., 598. Premising that in New York murder in the second degree is the same grade of offense as murder in the third degree in this state, the following extract from the opinion by Judge ANDREWS will show the *320views of that court, and also the similarity, in some respects, of the two cases. The judge says : “ The refusal of the court to charge that if the prisoner intended to maim and not to kill, the offense was murder in the second degree, was proper, for the reason that there was no evidence upon which the jury could have found that the prisoner intended to fracture the skull of the deceased, as distinguished from an intent to kill him. The request assumes that the prisoner acted, in striking the blow, after having formed an intent as to the extent of the injury to be inflicted. His act was a blow with an iron bar upon the head of the deceased, with a force which crushed the skull and drove it in upon the brain. There was no evidence from which his intent could be ascertained, except what was furnished by the facts preceding the assault, and by the act itself and its results. It is a fundamental rule of evidence, of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequence of his acts. Iu this case death ensued, as it was likely to ensue, from the act of the prisoner. And while it was for the jury to determine with what intent the blow was inflicted, we cannot, without doing violence to common sense, say that the prisoner may have intended to break the skull of Putnam without producing death. Such an intent cannot be predicated of his act, and there is no evidence to establish it. If the prisoner acted from premeditation, he may have intended to kill the deceased, or simply to do him-a bodily injury; but that he intended the particular injury of breaking the skull only, cannot be inferred.” (P. 608.)
So in the present case it was absurd for the jury to find that the defendant sent a bullet crashing through the head and brain of the deceased without any design to kill him, but with a design to inflict upon him one of the specific injuries above mentioned, for which the perpetrator, on conviction, is liable to be punished by imprisonment in the state prison.
We are clearly of the opinion that both questions propound*321ed to us by the learned circuit judge should be answered in the negative. -It will be so certified to the circuit court, with the advice that the verdict be set aside and a venire de novo awarded.
By the Court. — Ordered accordingly.