The prisoner was jointly indicted with one Antoine Le Compte and one Come
*204A. Morrisett for the murder of one Jean Baptiste-La Rochelle, on the 9th day of April, 1860.
The indictment contains three counts; the first charges the murder to have been committed feloniously, &c., by casting, pushing and throwing the deceased into a building on fire, which had been wilfully and feloniously set on fire by the prisoner and his associates, the second and third counts severally charge the arson, and then charge that the deceased was mortally burned and killed by the prisoner and his associates, while engaged in the commission of said felony and arson.
The prisoner pleaded not guilty, and was tried separately at the oyer and terminer in the city of New York. The jury found the prisoner “ not guilty of murder, but guilty of manslaughter in the first degree.”
I see no errors during the trial, either in the admission or rejection of testimony, or in the charge of the court.
The dying declaration of La Rochelle was clearly admissible in evidence. It was shown to have been duly made, and to have been reduced to writing in the presence of the hospital surgeon, police justice, fire marshal and others, and that at the time it was so made, La Rochelle considered himself in a dying condition, and that he had been before making the same advised by his attending physicians that he was in a dying condition. Besides, it appears to have been made and sworn to in the presence of the prisoner, and that the prisoner had an opportunity to ask the deceased any questions.
The grounds upon which the prisoner’s counsel insists that this dying declaration was not admissible, appear to me to point rather to its weight or effect as evidence than to its admissibility as evidence.
It is not necessary to refer to the other testimony given on the trial, either on the part of the people or on the part of the prisoner, except to state, that it appears from the *205testimony that the fire was on the 20th of March, 1860, and that La Rochelle died on the 8th of April, 1860.
Nor is it necessary to notice the several requests of the prisoner’s counsel to charge or instruct the jury. They were all, I think, properly refused by the court. They all appear to have assumed, or to have been made on the idea, that the prisoner could not be convicted in consequence of the passage of the act of April 14th, 1860, entitled, “ An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder.”
In answer to the sixth request to charge, and perhaps it may be said in answer to all the requests to charge, the court declined to instruct the jury “ that if any offence was committed by the prisoner, which is now punishable, it was murder in the first degree and no other,” except that the court did charge the jury, that the prisoner could not be convicted of murder in the first degree.
This charge of the court was, I think, right.
By an act of April 14th, 1860, the crime of murder is divided or classified into two degrees. By § 2, “ All murders which shall be perpetrated by means of poison, or by lying in wait, &c., or which shall be committed in the perpetration or attempt to perpetrate any arson, &c., shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree.”
The prisoner was not and could not have been indicted under the act of April 14th, 1860, for the crime if committed was committed before the passage of that act; but by ^ 9 of the act, the punishment of murder in the second degree as prescribed in the act, “ shall apply to all crimes now punishable with death, except,” &c.
The punishment prescribed by the act of 1860, for murder in the second degree, is imprisonment in state prison for life.
The charge of the court, that the prisoner could not be convicted of murder in the first degree, had reference merely to the form of the verdict, and the form of the verdict to *206the punishment merely under the act, for a crime committed before the act; the act not having pardoned or affected the crime, but having altered the punishment.
I think, then, the charge of the court was correct; that the jury could not convict the prisoner of murder in the first degree, but that they might have convicted him of murder in the second degree.
But the jury did not convict him of murder, or of murder in either the first or second degree, but of manslaughter in the first degree.
Under the indictment against the prisoner, could the jury convict him of manslaughter in the first degree ?
This is really the material question presented by the writ of error in this case, although raised obscurely, if at all, by the prisoner’s counsel. But we cannot avoid seeing that the record presents this question; and it must be disposed of.
It is plain to me that the prisoner could not be convicted of manslaughter in the first degree under the indictment, for the reason that manslaughter in the first degree was not and could not have been included in the charge or accusation, or in either of the charges or accusations contained in the indictment. (See opinion in Hennessy agt. The People, decided at this term, and the cases there cited.)
Manslaughter in the first degree is defined by the Revised Statutes to be “ the killing of a human being, without a design to effect death by the act, &c., of any other, while such other is engaged,
u 1st. In the commission of a crime or misdemeanor not amounting to felony; or,
“ 2d. In an attempt to perpetrate any such crime or misdemeanor.”
The Revised Statutes also declare “ every person deliberately assisting another in the commission of self-murder,” and “ the wilful killing of an unborn quick child, by any injury to the mother of such child,” &c., shall be deemed guilty of manslaughter in the first degree. ■
*207It is clear, if the crime of manslaughter in the first degree as defined by the Revised Statutes, was included in the charge or accusation against the prisoner, it must be the crime as defined by the first provision, the tilling of another without design in the perpetration of a crime or misdemeanor, or in an attempt to commit a crime or misdemeanor, not amounting to felony. The two last counts of the indictment, and perhaps all of them, charge the tilling, or the injuries of which La Rochelle died, to have been perpetrated while the prisoner and his associates were engaged in the commission of arson. Arson is a felony—every degree of arson is a felony—a person convicted of arson in the fourth and lowest degree, is liable to punishment by imprisonment in state prison, and, therefore, arson even in the fourth degree is a felony. How then can it be said, that the crime of killing another in the perpetration of a misdemeanor, or in an attempt to commit a misdemeanor, was or could be included in the charge in the indictment ? A misdemeanor may certainly be included in a felony; but a misdemeanor cannot be included in arson; for the lowest degree of arson is a felony by statutory definition, and the jury could, not, by rejecting or disregarding any circumstance or circumstances which constitute or enter into the definition of arson, reduce the crime of arson to a misdemeanor. Under the first count in the indictment, perhaps the jury might have convicted the prisoner of an assault and battery merely, for that offence is included in the charge in that count; but no other misdemeanor, or attempt to commit a misdemeanor, is charged or included in the charge or accusation in that count. If the prisoner and his associates did wilfully burn the house, as charged in that count and in the other counts, it was arson, and no other or less offence.
My conclusion is, that the prisoner could not be convicted of manslaughter in the first degree, under the indictment, and that there should be a new trial.