statement or did any act at that time that had the appearance of a desire on her part to hide a petticoat was properly excluded, as calling for a conclusion. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1048-1051; Dec. Dig. 8 448.*] 6. CRIMINAL LAW (§ 695*) - TRIAL-RECEP TION OF EVIDENCE. It appeared that the deceased and the The respondent were husband and wife. state called as a witness one Mrs. Delvina Hastings, and offered to show by her that she and her husband lived on a farm at Sunapee, N. H., where the respondent and her husband lived for four or five years; Where a question objected to contained that the witness and her husband were several elements and one of them was improper, there as tenants from the fall of 1907 about it was not error to exclude the entire question. a year; that while there she heard the re[Ed. Note. For other cases, see Criminal spondent make threats against the life of Law, Cent. Dig. § 1637; Dec. Dig. § 695.*] her husband, hearing her say she would kill 7. WITNESSES (§ 277*)-CROSS-EXAMINATION. him if he did not do certain things. The Where, in a prosecution for homicide, accused had been permitted to testify concerning her relations with deceased, and that, when accused and deceased left C. together, accused supposed defendant was married to B., questions as to why B. did not come back and whether accused knew of deceased ever getting a divorce from her was proper cross-examination. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 925, 979-984; Dec. Dig. § 277.*] 3. INDICTMENT AND INFORMATION (§ 189*) INCLUDED OFFENSES-MURDER - INVOLUNTARY MANSLAUGHTER. P. S. § 2337, provides that, under an indictment for murder, defendant may be convicted of murder in the first or second degree, or of manslaughter, according to the proofs, and section 5697 declares that, if the evidence in the jury's opinion is insufficient to convict of murder, a person arraigned and put on trial for that offense may be convicted of manslaughter if the evidence proves that offense. Held, that where accused is indicted for murder he may be convicted of involuntary manslaughter under such indictment. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 593; Dec. Dig. § 189.*] 9. CRIMINAL LAW (§ 936*)-NEW TRIAL-SUR PRISE. Where accused was indicted for murder in the first degree, he was bound to know that it was the duty of the court to charge on every branch of the case included in the indictment and supported by the evidence, and hence the fact that the court charged on involuntary manslaughter was not surprise for which he could obtain a new trial. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 936.*] court asked, "What things?" The state's attorney answered, "That had to do in part with the leasing of the farm and their own private affairs, not all of which she heard; that the respondent is a loud talking woman; that she frequently became angry with her husband, and I offer to show also that the witness has seen her seize hold of him by the coat collar and yank him around, put him in a chair and on the lounge, in connection with threats she heard her make; that these threats were in summer of 1908." Objection was made to this offer (1) because it is an attack upon the character of the respondent, which is not in issue; (2) because it does not tend to show her mental condition at the time of the alleged killing; (3) "because not the whole of the conversation can be stated, and, if the whole, might be perhaps a different color or interpretation would be given to what she said;" and (4) because it opens up a collateral issue, and makes it necessary to try each one of these alleged occasions to ascertain whether she had the intent at the times she made the threats or not. The state disclaimed any purpose of attacking her character, or of going into collateral matters. Exceptions from Franklin County Court; swered: Willard W. Miles, Judge. Addressing the state's attorney, the court said: "You offer to show that while she was residing there at a certain time this witness heard her make a threat to kill her husband?" To which the state's attorney an"That is it. That is all we want to show." The court: "Then come right to that Josephine Averill was convicted of man-point." An exception was saved. Subject slaughter, and brings exceptions, and peti- to the objection made and the exception tions for new trial. Affirmed, and petition taken, all inquiry respecting threats was refor new trial dismissed. ceived. The witness testified that in the Argued before ROWELL, C. J., and MUN- summer time of the year of 1908, on the SON, WATSON, HASELTON, and POW-place where they all lived together, she ERS, JJ. John G. Sargent, Atty. Gen., and George M. Hogan, State's Atty., for the State. M. H. Alexander and C. G. Austin & Sons, for respondent. WATSON, J. The indictment on which respondent was tried contains two counts, each charging her with murder in the first degree, by shooting Frank C. Averill at St. Albans on the 20th day of October, 1910. Verdict, guilty of manslaughter, and judgment thereon. heard the respondent make threats to her husband, Frank C. Averill. The witness was then asked: "What was the threat, and what did you hear her say?" The witness answered: "She said she would kill Frank if he didn't do so and so, when she was angry." The state objected to the answer, and moved to strike out "the part about being angry." The court ruled, granting the motion unless the respondent wished to have that part of the answer stand; and, no objection being made to striking it out, the motion was granted. The witness fur Vt.) STATE v. AVERILL 463 stricted to the trait which is in issue. It The third objection, "because not the [4] The fact that the witness did not hear all the respondent said does not render her testimony incompetent. Commonwealth -v. Pitsinger, 110 Mass. 101; Commonwealth v. Taylor, 129 Pa. 534, 18 Atl. 558. ther testified that she heard the respondent | it has reference to the general character re [2] Nor within the meaning of the law was the evidence in its declared purpose an attack upon the respondent's character. [3] The rule that the prosecutor cannot impeach the character of the accused until the latter has adduced evidence to support ance of a desire to hide the petticoat?" The We question asked shows it really to contain | were married, or that the respondent did three co-ordinate questions disjunctively con- not know at the time of the conversation nected, only the first of which need be stated. It amounted to this: Was there any statement by the respondent in connection with the removal of the petticoat, and putting it into the can, that had the appearance of a desire to hide the petticoat? The witness having narrated what the respondent said in that connection, it was the province of the jury to say what those sayings indicated. [6] This element of the question being improper, it was not error to exclude the entire question. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 Atl. 99. about Blanche, that she was not his wife. [7] The respondent testified in her own behalf. In cross-examination, her attention being directed to a time previous to any about which she had given testimony in chief, and to an occasion when she left the place in Cambridge, Mass., where she had been working for the deceased and a woman named or called Blanche Averill, she testified that the deceased and Blanche lived as husband and wife, and she then supposed they were married to each other, though she afterwards knew they were not; that after the respondent had been there about six or eight weeks Blanche went away with the understanding that she probably would return before a great while, and the respondent testified that Blanche did not come back there. This was in answer to the question: "How long after that did she The exception to the Attorney General's (Blanche) and he live together as husband argument in criticism of the argument of reand wife?" The respondent was then asked spondent's counsel in the treatment and by the Attorney General: "Why didn't she characterization of the state's witnesses, and come back there?" This question was ob- the testimony given by them, is without jected to as not cross-examination. There- force. That part of the Attorney General's upon the court said to respondent's attor- argument to which the exception points, conney: "You have been showing their relations sidered in the light of his explanation when and have offered these letters to show their the exception was noted, if intemperate at relations. In that view of the case, do you all, was not so to an extent warranting a insist this is not cross-examination?" The reversal. Besides, the arguments of reattorney answered that he did. The ques- spondent's attorneys, as well as that of the tion was allowed and exception noted. The Attorney General, were addressed to the jurespondent answered, "Because there was ry, and, if the argument of the latter was nobody there, we had gone away." In unwarranted as now urged, the jury knew further cross-examination she was asked: it, and it could do the respondent no harm. "Then within two days after this time, after Marshal v. Dalton Paper Mills, 82 Vt. 489, the woman you understood to be the man's 74 Atl. 108, 24 L. R. A. (N. S.) 128. wife left the house, everything was sold, and you and he had gone to the Boston boarding house to live?" and answered, "Yes." She also testified without objection on cross-examination that she and her husband occasionally talked about Blanche, but that she could not remember when this last occurred. Later, in cross-examination, she was asked whether she ever knew of his getting a divorce from Blanche. This was objected to as not cross-examination. The court ruled that she might answer "Yes or no," and an exception was saved. She answered, "No." No evidence was offered tend [8] The respondent admitted killing the deceased by shooting, but denied that it was intentional, and claimed it was purely accidental. The court instructed the jury as to the law of involuntary manslaughter. Respondent's counsel excepted generally to the charge regarding that offense, stating their theory of the prosecution all through the trial had been that it was a case of a mêlée in which the shooting was done in the heat of passion, and that at no time did they cross-examine witnesses or put in testimony on the theory of involuntary manslaughter, nor so argue to the jury. "A lawful act Vt.) STATE v. AVERILL 465 erwise have, yet it is nothing more than the manner of the fact, and not the substance of the fact, for the substance of the fact is the killing, and when the substance of the fact, and the manner of the fact are put in issue together, if the jurors find the substance and not the manner, judgment shall be given according to the substance. in law an unlawful act" (State v. Dorsey, | lose divers advantages which he should oth118 Ind. 167, 20 N. E. 777, 10 Am. St. Rep. 111); and we think the testimony given by the respondent tended to show that the shooting, though unintentionally done, was the result of negligence by her in handling the gun, indicating on her part a carelessness or recklessness incompatible with a proper regard for human life, which, if established, would in law render her guilty of involuntary manslaughter. It cannot be said that the charge respecting that subject was wholly unsound (see State v. Center, 35 Vt. 378), and defect in any particular part of it is not reached by such general exception. Needham v. Boston & Maine Railroad, 82 Vt. 518, 74 Atl. 226. This confines our consideration under that exception to the contention that thus to submit the case to the jury was error, because (respondent says) it did not conform to the indictment which did not furnish her with a description of the charge of involuntary manslaughter. The question, then, is whether a person indicted for murder may be convicted of involuntary manslaughter where the facts justify it, a question, so far as we are aware, never before raised in this state. At common law felonious homicide by killing another man was divided into murder and manslaughter-murder, "when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethought either express or implied"; manslaughter, "the unlawful killing of another without malice either express or implied; which may be either voluntary, upon sudden heat; or involuntary, but in the commission of some unlawful act." 4 Black. Com. 190191, 195. In Salisbury's Case, 1 Plow. 101, where John Vane Salisbury was indicted of murder upon malice prepense, the jury found that he killed the man, but not of malice prepense, and so acquitted him of the murder, and found him guilty of manslaughter. Whether he should be utterly acquitted by this verdict, or whether the court should give judgment upon him that he should be hanged for the manslaughter, or whether the verdict should serve only against him for an indictment of manslaughter, and be of no other effect, or what else should be done with him, was privately considered and debated by the bench among themselves. The opinion of the whole court was clearly that they might give judgment upon him to be hanged for the manslaughter; for they held that the jury might give a verdict at large, and find the whole matter, that, when he was arraigned for killing a man upon malice prepense, the substance of the matter was whether he killed him or not, and the malice prepense was but matter of form or the circumstance of killing. And although the malice prepense makes the fact more odious, and for this cause the offender shall 81 A.-30 In MacKalley's Case, 9 Co. 65, the indictment was for murder in killing a serjeant of London, and on trial the jury returned a special verdict, submitting to the justices of the court whether thereon the prisoners were guilty of murder or manslaughter. By the King's command all the judges of England were ordered to meet together to resolve what the law was upon the said record; and accordingly all the judges of England and Barons of the Exchequer, met together and heard counsel upon this special verdict as well of the prisoners as of the King. Lord Coke says the matter was very well argued by counsel learned on both sides at two several days, and that divers exceptions were taken to the indictment and to the verdict also. One exception to the verdict was for that the jurors had not found the special matter contained in the indictment, but other matter, and judgment could not be given against the prisoners upon that indictment. To this it was answered, and in the end resolved, that there was sufficient matter in the verdict pursuant to the matter contained in the indictment upon which the court ought to give judgment of death against the prisoners, notwithstanding the said variance, because the warrant which the serjeant had to arrest the defendant was but circumstance, which it was not necessary to be precisely pursued in evidence, to be found by the jury, that the variance urged was but circumstance, and a variance from the circumstance of the indictment is not material; and "so if one is indicted of the murder of another upon malice prepense, and he is found guilty of manslaughter, he shall have judgment upon his verdict, for the killing is the substance and the malice prepense the manner of it; and, when the matter is found, judgment shall be given thereupon, although the manner is not precisely pursued"-citing Plow. Com. 101. Thus it was established at common law that a person indicted for the murder of another upon malice prepense may be found guilty of manslaughter, because it does not differ in kind or nature of the offense, but only in the degree-not in substance of the fact from murder, but only in the ensuing circumstances, a variance as to which does not hurt the verdict. And to this effect is the law stated by Sir Mathew IIale, and by Serjeant Hawkins, in their respective Pleas of the Crown. 1 Hale's P. C. 449, 466; 2 Hawk. P. C. c. 47, § 4. See State v. Scott, 24 Vt. 127. It is said in State v. McDonnel, 32 Vt. 491, that the law of manslaughter is very correctly defined by Chief Justice Shaw in the Webster Case, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, thus: "Manslaughter is the unlawful killing of another, without malice, and may be either voluntary, as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion, occasioned by some great provocation, which in tenderness for the frailty of human nature the law considers sufficient to palliate the offense; or involuntary, when the death of another is caused by some unlawful act, not accompanied with any intention to take life." Speaking of the latter branch of manslaughter, Sir Mathew Hale says: "In these cases, to speak once for all, the indictment itself must find the special matter, or in case the indictment be of murder or manslaughter, and upon the trial it appears to the jury it was involuntary (as by misfortune, or in his own defense), the jury ought to find the special matter, and so conclude, et sic per infortunium, or se defendendo, and not generally, that it was per infortunium, or se defendendo, because the court must judge upon the special matter, whether it be murder, homicide, or per infortunium, or se defendendo, and the jury is only to find the fact, and leave the judgment thereupon to the court; and in such case the prisoner must not plead the special matter, and so justify, but must plead not guilty, and the special matter must be found by the jury, for upon the special matter found the court may give judgment against the conclusion of the verdict, as that the fact is manslaughter, though the conclusion of the verdict be per infortunium or se defendendo." And by way of illustration his lordship refers to a case very much in point: "Sir John Chichester, and his man servant, whom he very well loved, were playing together. The man had a bedstaff in his hand, and Sir John has his rapier in the scabbard. Sir John, according to the usual sport between them, bids his man guard his thrust or pass, which he was making at him with his rapier, in the scabbard. The servant with the bedstaff breke the thrust, but withal struck off the chape of the scabbard, where by the end of the rapier came out of the scabbard, but the thrust was not so effectually broken, but the end of the rapier prickt the servant in the groin, whereof he died. Sir John Chichester was for this indicted of murder, and tried at the King's bench bar, where all this evidence was given; and it was ruled: (1) That it was not murder, though the act itself was not lawful, because there was no malice or ill will between them. (2) That it was not barely chance medley, or per infortunium, because altho the act. which occasioned the death, intended no harm, nor could it have done harm, if the kild, and tho the parties were in sport, yet the act itself, the thrusting at his servant, was unlawful, and consequently the death that ensued thereupon was slaughter, and was accordingly found and adjudged, which I heard." 1 Hale's P. C. 471-473. It is in point to note in passing that excusable homicide as distinguishable from justifiable homicide, whether per infortunium or se defendendo, was formerly considered as involving some degree of legal blame or punishment, and so in such cases the verdict, though it excused the death, it did not excuse the forfeiture of goods, nor was the prisoner to be absolutely discharged out of prison, but bailed till the next term or sessions to sue out a pardon and writ of restitution of his goods as a matter of course and right, only paying the expense thereof; that in later times to prevent this expense in such cases the judges usually directed a general verdict of a general verdict of acquittal; and still later, by Acts of Parliament, all practical distinction between excusable and justifiable homicide was wholly done away. 2 Hale's P. C. 477, 478; 4 Steph. Com. 57. Regarding the form of the verdict, Serjeant Hawkins (vol. 2, c. 47, s. 4) says: "That it hath been adjudged. that where the jury find a man not guilty of an indictment or appeal of murder, they are not bound to make any inquiry, whether he be guilty of manslaughter, &c.; but that if they will, they may, according to the nature of the evidence, find him guilty of manslaughter or homicide se defendendo or per infortunium; for the killing is the substance, and the malice but a circumstance, a variance as to which hurts not the verdict. Yet the books seem to make this difference, that where the jury find the defendant guilty of manslaughter on an indictment of murder, they may give their verdict generally, without setting out any of the circumstances of the fact; but that they shall not be received to find him guilty generally of homicide se defendendo, or per infortunium; but must set out the whole circumstances of the fact, and in the conclusion show of what crime they find the defendant guilty, wherein if they be mistaken, it is said, that the court may notwithstanding give such judg ment as shall appear to be proper from the circumstances of the fact specially set forth." That both voluntary and involuntary manslaughter are included in the crime of murder, and a person indicted for murder may be convicted of murder or of either species of manslaughter, as the evidence may warrant, at common law, is held in the following cases in this country: Conner v. Commonwealth, 13 Bush (Ky.) 714; Buckner v. Commonwealth, 14 Bush (Ky.) 601; Bush v. Commonwealth, 78 Ky. 268; Powers v. State, 87 Ind. 144; Pigg v. State, 145 Ind. 560, 43 N. E. 309; Watson v. State, 116 Ga. 607, 43 |