delivered the opinion of the court,
*380The plaintiff was indicted and convicted in the court below of involuntary manslaughter. When called upon to plead to the indictment he filed a special’plea setting forth the fact that he had been indicted and tried in the same court upon the charge of murder; that upon such previous trial the jury had convicted him of murder in the first degree; that the judgment in that case had been reversed by the Supreme Court, and that he had been discharged from said indictment; that the indictment for involuntary manslaughter involves the same facts and circumstances as were involved in the charge of murder, “ and that the offence charged in this indictment (involuntary manslaughter), under the guise of a misdemeanor, is none other than the offence of which the said defendant was discharged or acquitted at said No. 1, March Term, 1885.”
To this plea the Commonwealth entered a demurrer, and the case is before us now solely upon the effect of the pleadings.
The former case, Hilands v. Com., will be found reported in 111 Penn. St., 1. The judgment below was reversed for the reason that the jury first empanneled to try the case had been discharged by the court of its own motion, not only without the consent, but against the will of the prisoner. Another jury was placed in the box, when the prisoner pleaded former jeopardy. The court overruled this plea, and the trial proceeded! resulting in a conviction of murder in the first degree. This court held that the plea should have been sustained, and ordered the discharge of the prisoner from the indictment. He has now been convicted of the offence of involuntary manslaughter, and as is admitted by the demurrer, for the same homicide.
As before observed, the case comes before us now upon the pleadings only; the evidence is not here; hence, we do not know whether upon the trial for involuntary manslaughter, a felonious homicide was proved.
It is very evident the plaintiff can never be tried again upon any charge of which he might have been convicted upon the first indictment. As was said in McFadden v. Com., 23 Penn. St., 12, “A discharge of the jury in .a capital ease after the trial has begun is not a continuance of the cause. It is the end of it. And for all purposes of future protection it is the same to the prisoner as an acquittal, unless it was done with his own consent or demanded by some overwhelming necessity, such, for instance, as the sickness or death of a juror.”
But the protection extends no further than the offence charged in the first indictment, or of which he might have been convicted under it. He was not in jeopardy for any other offence. The first indictment charged murder. Under it he might have been convicted of murder of the first or *381second degree, or of voluntary manslaughter, bub not of involuntary manslaughter. The latter offence is a misdemeanor; it must be charged as such, and cannot be included in an indictment charging felonious homicide excepting in the case of an indictment for voluntary manslaughter,' where it may be joined by force of the Act of 31st of March, 1860. Walters v. Com., 44 Penn. St., 135. It follows that when the plaintiff was put upon this trial for murder, he was placed "in no jeopardy of a conviction for involuntary manslaughter.
If we regard the result of the first trial as the equivalent of an acquittal of the charge of murder, which is stating it in the most favorable form for the plaintiff, it does not help him. It does not follow that because the crime charged may not in law amount to felonious homicide, that it may not constitute a misdemeanor, and be punished as involuntary manslaughter. The failure of the Commonwealth to convict of the higher crime does not preclude her from establishing a lesser crime, even though arising from the same state of facts. The evidence necessary to establish involuntary manslaughter is essentially different from that required to support an indictment for murder. It was said in Com. v. Trimmer, 84 Penn. St., 69, that, “ when the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the pleas of autrefois acquit is generally good, but not otherwise.”
We need not pursue the subject further. The question was very carefully and intelligently discussed by the learned judge below upon the writ of habeas corpus, and it scarcely needed even these brief remarks to show that his rulings were entirely accurate.
Judgment affirmed.