Mr. Justice Heydenfeldt concurred.
The appellant was convicted by the District Court of Shasta county of the crime of murder, in 1855; an appeal was taken, and the judgment of the Court below was reversed, and a new trial ordered. After the remittitur had been filed in the Court below, the indictment under which the conviction was had was, on motion of the District Attorney, set aside, because of certain irregularities in the summoning and empanneling the grand jury which found it. A pew indictment'having been found by a subsequent grand jury, appellant was again put upon his trial for the murder of said Timmons.
The cause being submitted to* a jury, a verdict of guilty was returned, upon which the Court entered judgment.
It is contended by the appellant, first, that the defendant was entitled to be discharged upon the dismissal of the former indictment, and that the trial and subsequent proceedings were in violation of that clause of our Constitution, which provides that “ no person shall be twice put in jeopardy for the same offence.” This provision was never intended to apply to cases in which a judgment of conviction was reversed in the appellate Court, and a new trial ordered. In such cases, it being apparent, from the judgment of reversal, that such trial was erroneous, the defendant in fact was not in jeopardy. The order for a new trial places the party in the same position as though no trial had been had. See C. L. 478, § 439.
It is contended, second, that, the former indictment was improperly set aside; that the 597th section of the Criminal Practice Act, which empowers Courts to set aside indictments on motion of the prosecutor, and for reasons to be embodied in the order, means legal and sufficient and not frivolous reasons, and that the said indictment had been decided in this Court to be valid and sufficient.
In point of fact, the question of the validity of the indictment was not passed on by this Court. The case was determined solely upon an objection to the juror; but conceding that the indictment was perfect in every respect, we do not construe the section of the law referred to as only permitting a dismissal of the indictment on account of defects in the instrument itself.
Many cases might arise when in furtherance of justice we would be called upon to dismiss a good indictment, and such a dismissal is, under our statute, no bar to a further prosecution for the same offence, if it amount to felony.
The second objection is to the form of the verdict, which is in the following words: “We, the jury, find the defendant guilty.” It is *547said that this verdict did not authorize a sentence of death; that, inasmuch as the indictment for murder included, under our statute, the crime of manslaughter, the verdict only amounted to a conviction of the lesser offence.
The authorities cited in support of this decision, are under statutes which establish degrees in the crime of murder, except the case of McCawley v. U. S., 1 Mour., 486, where it was held that on a plea of guilty upon an indictment for murder, a jury must determine whether the offence be murder or manslaughter.
We have not been able to examine the authority referred to, but presume it was under a system, of practice very different from ours. Under our system, an indictment properly contains but one count, charging a single crime, and under it the accused may be convicted of any offence necessarily included in the offence charged. If the conviction is for a smaller offenee than that charged in the indictment, it must be specified in the verdict. “ A general verdict of guilty imports a conviction on every material allegation in the indictment.” C. L., 475, § 418. The verdict in this case establishes the truth? of the charges sustained in the indictment, and was a conviction for murder.
Third, the charge of the Court as to the proofs of circumstances was, it is said, laid down too broadly, and was calculated to mislead the jury, to the prejudice of the defendant.
In support of this objection, a case is cited in 8 Saunders and Marshall, where a similar instruction was held to be erroneous. We do not think the ruling in this case can be supported either by reason or authority. It is admitted that the charge was correct in principle, and it is difficult to presume how a juror of ordinary intelligence could be misled by it; at any rate, if the defendant feared such an effect, he should have asked an instruction explaining it.
There was no error in the instruction as to the evidence which should be required to prove insanity. It is possible to establish the insanity of the defendant at the instant of the commission of the offence, only by evidence tending to prove that the defendant was insane at some period before or afterwards. Upon this point as well as the last, there is no evidence in the record upon which to base the instruction, or to show its relevancy, and we have before decided that we would not disturb a judgment of the Court below on account of an erroneous instruction, which was not applicable to the facts of the case. See People v. Roberts.
The judgment is affirmed, and the Court below directed to carry its sentence into execution.