I concur with Mr. Justice Hieschbebg- that the question presented was not raised at the trial. I think that if it had been raised the judgment must be reversed.
The defendant is convicted of manslaughter in the second degree. Section 142 of the Code of Criminal Procedure forbids an indictment for that felony for the reason that five years had elapsed since the crime was committed. As this crime must be prosecuted by indictment (Id. § 4) section 142 is a bar to a trial for the offense. But it is insisted that because the defendant was convicted of manslaughter on his trial of his indictment for murder in the second degree, his conviction is valid maugre the statute. Necessarily, this contention is founded upon the construction that the statute does not prohibit a conviction for manslaughter, but simply an indictment (and consequently a trial) for the specific crime of manslaughter. In other words, there cannot be direct accusation and trial for the crime because five years have elapsed, but this flight of time, which is deemed a proper limitation upon direct proceeding, should not be held a bar provided the conviction result upon the trial of an indictment (an accusation) for murder in the second degree. I can see no good reason for the distinction. Why should the State enact a statute of limitations upon direct jDrocedure, and thereby afford immunity for a crime, and yet permit punishment for the same crime by the indirect procedure of an accusation of a different crime? I can see no reason in the public policy that permits punishment for a crime when proven upon the trial of an indictment for a different crime, and yet prohibits punishment for that crime when sought by a direct indictment therefor. “ The letter killeth where the spirit giveth life.”
The fact that manslaughter is* a degree of homicide does not change the character of the offense, or afford any reason that it should be punished that does not obtain when we term it manslaughter. The fact that a grand jury upon the evidence presented deems that the act constitutes murder, so as to warrant such accusation, adds nothing to the gravity of the act which the verdict of the petit jury determines as manslaughter, of which crime alone the defendant is convicted. Whatever the trial be, whether for murder or for manslaughter, the verdict decides that the crime is manslaughter and *390nothing more. The crime, as I have said, must be tried by indictment. (Code Grim. Proc. § 4.) Though the indictment found was for the commission of a certain act under circumstances which are' charged to constitute murder in the second degree, yet as that very act is determined by the trial to constitute but manslaughter in the second degree, I think that the indictment upon which the defendant was tried may be regarded as an indictment for the offense of which the defendant was convicted to the - extent that it should be held - within the purview of the- said section 142 of the Code of Criminal Procedure. In other words, I think that the fair interpretation of the statute prohibits conviction for the felony of manslaughter in the second degree in this case.
Statutes of limitation in the criminal law .are not subject to the strict .construction that obtains in the civil law. Hr. Wharton in his work on Criminal Pleading and Practice states the principle of construction as follows (§ 316): “We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. 'The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to .the other; there is, therefore, no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its right to prosecute, and declaring the offence to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and. grudgingly applied, but an amnesty declaring that after a certain time oblivion shall be east over the offence;. that the offender shall be at liberty to return to his country and resume his immuni- ■ ties as a citizen ; and that from henceforth he may -cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation áre to be liberally construed in'favor, of the defendant, not only because such liberality of construction.belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition, and notification by
*391the legislature of the fact that time, while it gradually wears out-proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of these views it must be remembered that delay in instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt,. and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that .can be obtained.” (See, too, People v. Lord, 12 Hun, 282.)
Mr. Bishop, in his work on Statutory Crimes (3d ed. § 261d), says: “ There are decisions not requiring special consideration, as to what offenses are within the varying terms of our limitations statutes. Now — Offenses within one another.— In those cases in which a conviction for a minor offense may be had on an indictment for a major, the same as in any other, the particular one for which the verdict is found must not be barred by the statute.” (People v. Picetti, 124 Cal. 361; Riggs v. State of Mississippi, 30 Miss. 635 ; White v. State, 4 Tex. App. 488, citing State v. Freeman, 17 La. Ann. 69; Turley v. State, 3 Heisk. 11; Nelson v. State of Florida, 17 Fla. 195; Commonwealth v. Ruffner, 28 Penn. St. 259.)
I think that' as upon any construction of this statute it is at least a bar to trial, conviction and punishment upon an indictment for the specific felony, in that it prohibits indictment, which is the sole procedure authorized (Code Grim. Proc. § 4), the fact that in any of the cases cited the statute considered prohibited punishment does not affect the force of its authority upon the general principle. I think that the decision of the Oyer and Terminer in People v. Dowling (1 N. Y. Crim. Rep. 530) should not be followed. The learned justice who wrote, after stating that the position taken by the prisoners’ counsel “ may seem to be within the equity of the statute,” thought that he was bound to follow the strict language thereof. He pointed out that with the statute stood the other statute that upon an indictment for any offense consisting of *392different degrees, the jury may find the accused guilty of any such offense .inferior to that charged. But even so, both statutes-could stand and be effective, for where five years had not intervened the commission of the crime and the indictment, then the latter statute might still- apply — its application is but limited. Clark v. State of Georgia (12 Ga. 350), mentioned in the opinion of Mr. Justice. Hirschberg, and also cited as authority in People v. Dowling (supra), is characterized by Mr. Wharton (Grim. PI. & Pr., note to §=323).as “a remarkable case,” which I take to he an expression of doubt of the soundness of the doctrine, inasmuch as the facts are commonplace.
Judgment of conviction affirmed.