concurs quaere de dubiis: While not pressed on the argument, or debated on brief, it may be doubted whether a more fundamental question than all the rest, does not arise on the face of the record proper. It is this: Is a verdict of assault with a deadly weapon supported by a statutory indictment for murder which fails to allege that the homicide was committed by means of assault and battery or assault with a deadly weapon ? This may be doubted. In re McLeod, 23 Idaho, 257; 43 L. R. A. (N. S.), 813; Watson v. State, 116 Ga., 607, 43 S. E., 32, 21 L. R. A. (N. S.), 1, and note; 31 C. J., 866; 14 R. C. L., 210.
It is not essential to a valid indictment for murder that the means used be set out in the bill. The abbreviated statutory form is permissible and sufficient. S. v. Gilchrist, 113 N. C., 673, 18 S. E. 319; S. v. Covington, 117 N. C., 834, 23 S. E., 337; S. v. Matthews, 142 N. C., 621, 55 S. E., 342. But it is a rule of universal observance in the administration of the criminal law that a defendant cannot be charged with one offense and convicted of another not included therein. People v. Adams, 52 Mich., 24; S. v. Harbert, 185 N. C., 760, 118 S. E., 6. If this were not so, pleas of former jeopardy, former conviction and former acquittal would vanish from the books. 8 R. C. L., 110.
True, it is provided by C. S., 4639 that “on the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding.” And it has been said in a number of cases, notably S. v. Williams, 185 N. C., 685, 116 S. E., 736, S. v. Smith, 157 N. C., 578, 72 S. E., 853, S. v. Fritz, 133 N. C., 725, 45 S. E., 957, and S. v. Hunt, 128 N. C., 584, 38 S. E., 473, that on an indictment for murder, the defendant may be convicted of any one of the three degrees of an unlawful homicide, to wit, murder in the first degree, murder in the second degree, or manslaughter, and even of an assault with a deadly weapon, or of a simple assault, “if the evidence shall warrant such finding,” when he is not acquitted altogether. “It is as if all these counts were separately set out in the bill (for it includes all of them), S. v. Gilchrist, 113 N. C., 673.” S. v. Hunt, supra. But in *700all of these eases, and others of like import, the observation is carefully made that, to warrant one of the lesser verdicts, assault with a deadly weapon or simple assault, the crime charged must include an assault against the person as an ingredient. S. v. Fritz, supra; S. v. Lee, 192 N. C., 225, 134 S. E., 458.
Again, it is provided by C. S., 4640 that “upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.” But the lesser offense for which a conviction may be had on an indictment for a higher one, must either be included in the general charge of the greater, or the indictment must contain sufficient allegations to constitute a charge of the lesser. Watson v. State, supra. Indeed, a conviction may not be had for an assault on an indictment for murder when it appears that not the assault charged but another caused the death. This would be a fatal variance between the allegation and the proof. S. v. Harbert, supra.
In a case like the present, where it is sought to fall back upon the lesser offense, assault and battery or assault with a deadly weapon, in case the greater, murder or manslaughter, is not made out, it is not unreasonable to require that the indictment for murder be so drawn as necessarily to include an assault and battery, or assault with a deadly weapon, or that it contain a separate count to this effect. Scott v. State, 60 Miss., 268. The decisions which hold that it would be violative of a defendant’s constitutional right to charge him with the commission of one crime and convict him of another and different one, are not at variance with this requirement, but are accordant therewith. S. v. Wilkerson, 164 N. C., 432, 79 S. E., 888.
The Constitution provides that in all criminal prosecutions every man has the right to be informed of the accusation against, him, and that no person shall be put to answer any criminal charge, . . . but by indictment, presentment, or impeachment. Art. I, secs. 11 and 12. A defendant is entitled to be informed of the accusation against him, and to be tried accordingly. S. v. Ray, 92 N. C., 810; S. v. Snipes, 185 N. C., 743, 117 S. E., 500; S. v. Whedbee, 152 N. C., 770, 67 S. E., 60. “These principles,” said Nash, C. J., in S. v. Moss, 47 N. C., 67, “are dear to every freeman; they are his shield and buckler against wrong and oppression, and lie at the foundation of civil liberty; they are declared to be rights of the citizens of North Carolina, and ought to be vigilantly guarded.”
On an indictment which charges only that the defendant did felo-niously kill and slay the deceased, a conviction of assault with a deadly weapon cannot be sustained, unless an assault with a deadly weapon is *701perforce covered by the charge. S. v. Vineyard, 85 W. Va., 293, 101 S. E., 440. And if it be conceded that a charge of murder ex vi termini includes, as an ingredient, an assault against the person, would not a conviction of assault, on such indictment, necessarily be limited to the assault which contributed to the homicide? If not, may the defendant, under a charge of murder, be convicted of an assault against the person, of any character, committed within the period of the statute of limitations ?
The point may be illustrated by the instant case. Conceding that the placing of Willie Bellamy in the dark cell was an assault against him, under the circumstances disclosed by the record, which contributed to his death, would not this be the assault covered by the bill, and not some other assault which neither caused nor contributed to his death?
Take another illustration: Two men engage in an affray in which each assaults the other with a deadly weapon, but neither is seriously injured. Months afterwards they meet again, one shoots the other and kills him. On an indictment for the murder, would it be permissible to convict the defendant of an assault committed in the affray?
Involuntary manslaughter may be committed without the deceased being assaulted, as for example, where a homicide occurs as a result of some negligent or culpable omission of duty. S. v. Rountree, 181 N. C., 535, 106 S. E., 669; S. v. McIver, 175 N. C., 761, 94 S. E., 682. Perhaps the most that can be said of the present indictment is, that it charges an offense of which assault with a deadly weapon may or may not be an ingredient. S. v. Thomas, 65 N. J. L., 598. It does not set out murder or manslaughter by assault, and it cannot be held to cover assault and battery, or assault with a deadly weapon, as an independent averment. People v. Adams, supra.
Of course, where the means used to commit the homicide is set out in the bill and this includes an assault with a deadly weapon, it is not likely that the question here debated would ever arise.
Nothing said in this opinion is in any way binding on the court. The question is not decided.
Justices Adams, ClabksoN, CoNNOe, and BeqgdeN, while not inclined to debate an academic question, deem it not improper to say that upon the evidence appearing in the record the following instruction, which was given the jury in this case, is in their opinion free from error: “You may bring in either one of four verdicts as to the defendant Watkins, as you may find the facts to be from the evidence, under the law as given you by the court: First, manslaughter, assault with a deadly weapon, simple assault, or not guilty.”