The indictment in this case contained three counts.
The first charged that the prisoner, intending and contriving one La Rochelle, wilfully, &c., to kill, burn and murder, having wilfully and feloniously set fire to a certain building, &c., and while the building was burning, by the act of the prisoner and his accomplices, into the fire and flames, wilfully, &c., did cast, push and throw the said La Rochelle, and that the said La Rochelle was thereby mortally burned, and of such burning did afterwards die.
The second count charged that the prisoner and his accomplices did set fire to a building, not a dwelling-house, and that La Rochelle then and there being in the said house at and during the burning, was, by means of the said burning so done and committed by the prisoner and his associates, mortally burned, and of such burning died.
The third count charged the same facts, with the addition, that the killing by the prisoner was while the parties were engaged in the perpetration of the felony and arson.
Under this indictment the prisoner was convicted of manslaughter in the first degree.
I concur with Justice Sutherland in the views expressed by him, as to the exceptions taken upon the trial, both as to the rulings upon the evidence and as to the Judge’s charge and refusals connected therewith. I do not think it necessary, therefore, to re-examine those questions here.
The point upon which the conviction is deemed to be erroneous is, that as the indictment charged the killing to have been perpetrated while the prisoner was engaged in the commission of the crime of arson, he could only be convicted of the crime of murder, and not of manslaughter in the first degree.
I concede that this rule is correct, if the indictment sets out the offence in this manner in each count therein.
The crime of arson being in all its grades a felony, if the deceased was killed by the prisoner while engaged in the *209perpetration of that offence, he could only be convicted of the crime of murder, because by the statute, when the prisoner was engaged in the commission of the felony, if he committed the homicide, the offence is declared to be murder, and when the prisoner was engaged in the commission of a misdemeanor, the offence is declared tobe manslaughter.
Upon an examination of this indictment, I think it is apparent that the first and second counts do not charge that the prisoner whs engaged in committing, or in the attempt to commit a felony.
The averment that he had set fire to a building, was only inducement to show the mode by which the death was produced. It was no more than averring that the prisoner had made a fire, into which, for the purpose of taking life, he pushed the deceased.
In both the first and second counts, also, it is averred, that the firing of the building had taken place, and that while the building was burning, the prisoner pushed the deceased into the fire.
Neither of these counts would be good for the charge of murder, while the prisoner was engaged in committing a felony, or attempting to do so.
The question then arises, whether the conviction for manslaughter could be sustained on an indictment charging the prisoner with killing another, by pushing him into a fire which the prisoner had previously kindled.
In the present case, we cannot review the finding upon the facts. All the testimony is not contained in the error-book, but only so much as is necessary to present the exceptions taken on the trial.
The difficulty with this branch of the case is, that no such point was presented at the trial, no request to charge as to these counts of the indictment, and no exception whatever embracing this objection.
The judge’s charge is not given, and the whole of it was without any exception.
*210If the prisoner had insisted that the conviction of manslaughter was wrong, he should, when the jury brought in that verdict, have objected, and requested the court to instruct the jury that such a verdict could not be received, and asked to have them sent back under proper instructions from the court. By not objecting, he must be considered as assenting to the verdict in the form in which it was rendered.
I suppose that under this indictment the prisoner might have pleaded guilty of manslaughter in the first degree, and such a plea would after judgment be held valid. The same rule must be held as to a verdict if not objected to at the trial, or when rendered.
It is well settled that under the common law indictment for murder, the prisoner could be convicted of any degree of manslaughter which the evidence would make out; and so also it has been held that under the common law indictment for manslaughter, the prisoner could be convicted of the offence in any degree according to the evidence. (People agt. Butler, 3 Park. Cr. R., 377.) The conviction in the latter case was reversed because the judge instructed the jury to find such a verdict, which was excepted to.
The killing of a human being without the authority of law is divided, where such killing is criminal, into. two classes, murder and manslaughter, and those classes are again subdivided. Under the rules above referred to, a prisoner tried under an indictment for murder may, according to the evidence, be convicted of either class of the offence, and of either subdivision of such class according as the evidence makes out the offence; and if the indictment had been for manslaughter only, then the conviction for either degree of manslaughter would have been within the power of the jury according as the evidence would warrant. This rule, necessarily is so, because an acquittal on this indictment would have been a bar to any other indictment for the same killing.
*211The statute expressly provides that such a rule shall exist upon an indictment charging an offence of different degrees.
I can very easily see how a jury might, in such a case as this is, arrive at a result which would warrant this conviction. If the fire had merely been communicated to the goods, and not to the building, there might have been doubt as to the commission of the felony; but at the same time, the evidence showed a conspiracy to defraud the insurance company between the prisoner and his associates. If, under such circumstances, the jury leaned to the side of mercy, and instead of convicting the prisoner of a crime that would have forfeited his life, have taken the lesser degree of that offence, it furnishes no ground for a reversal. That they believed him guilty of unlawfully talcing the life of deceased-is evident, and the only question was as to the grade of the offence. Had the verdict been “ guilty of murder,” that verdict would have been sustained. I see no reason why we should interfere with it because it convicts the prisoner of a milder offence.
I think the judgment should be affirmed.