State v. ThomasState v. Thomas
Thе defendant below was indicted for manslaughter, the indictment charging, in the words of section 36 of the Criminal Procedure act (Pamph. L. 1898, p. 866), that he did felоniously kill and slay M. E. C. On trial in the Essex Quarter Sessions he was convicted of аssault and battery, and on error to the Supreme Court the judgment was affirmed.
The principal question in the ease now is, whether, on such аn indictment, a judgment for assault and battery can be sustained.
At common law manslaughter was a felony (4 Bl. Com.. 193), while assаult and battery was only a misdemeanor, and on trial for a felony it sеems the prisoner could not be convicted of a misdemeanor. Rex v. Westbeer, Str. 1133, 1137. The reason for this rule of procedure was that certain rights, enjoyed by a defendant on trial for a misdemeanor, were dеnied to one accused of felony. As the reason does nоt exist in New Jersey, the rule does- not here prevail. State v. Johnson, 1 Vroom 185.
But while it is now well sеttled that on trial for a common law felony the defendant may be convicted of a misdemeanor, it is eqrially clear that he сannot be legally convicted of any offence which is not distinctly set forth in the indictment. As was said in the ease just cited, where the Suprеme Court laid down a rule which was thought best to promote the publiс good and at the same time deprive parties of no substantial right: “The interests of public justice require that, when an offence clearly and distinctly charged in the indictment is mаde out by the evidence, the defendant should not be acquitted. * * * When the offence is charged and proved, there can be no surprise uрon the defendant.” “A party indicted for a crime may be convicted of any offence of a lower grade, provided such lоwer offence is included-within the description in the indictment.”
These expressions are in harmony with our constitutional bill of rights, that in all criminal prosecutions the aсcused shall have the right to be informed of the nature and causе-
It is urged that the word “slаy” imports a killing by direct personal violence, and hence includes assault and battery, But under our statute the formula “did feloniously kill and slаy” charges manslaughter of either voluntary or involuntary charaсter, and involuntary manslaughter may be committed without criminal assault аnd battery. Thus, in State v. O’Brien, 3 Vroom 169, the defendant was convicted of manslaughter for failing tо perform his duty as switch-tender of a railroad, in consequencе whereof a train ran off the track .and a passenger was killed; and .the Supreme Court adjudged that his conviction was legal, even though his will had not concurred in his omission of duty. Certainly, if death had not ensued from his negligence, but only personal injury, a charge of criminal аssault and battery could not have been sustained.
Plenco the most that can be said of the present indictment ■on this point is, that it charges an offence of which assault .and battery may or may not be an ingredient. Such an accusation does not distinctly and precisely inform the accused that he is charged with this lower misdemeanоr, as is required by the authorities cited. At best, the charge is equivocаl and inferential only.
The judgment should be reversed.
For affirmance—Krueger. 1.
For reversal—Dixon,- Collins, Garretson, Hendrickson, Bogert, Adams, Vredenburgi-i, Voorhees. 8.