in the case of State v. Ross, 29 Mo. 32, in a dissenting opinion, bases his opposition to the views above expressed primarily upon the ground, that if the verdict and reversal is to have the effect claimed, “then there is no charge on the second trial on which the accused can be tried.” And he asks, “Being acquitted of the greater, which includes all the less offenses, how.can he be tried for any of them ? What is there on which the party can be arraigned ? And again he says, “A verdict is necessarily an entirety and must all stand or fall.” One objection to begin with, to this argument, is that it would be equally applicable in a case where the jury had expressly found the prisoner “ not guilty ” of murder in the second degree, but “guilty” of manslaughter. And yet certainly it would not be claimed in such a case that the prisoner could be again put upon his trial for the higher offense. But then this idea of the verdict being an entirety is technical, rather than real and practical. It will not do to thus controvert about terms and abstractions on a question involving the life and liberty of the citizen. When the prisoner was indicted for murder in the second degree, (or as iñ the case in Missouri, in the first degree)' he could be put upon his trial for any offense the commission of which was necessarily included in that charged. And for any sueli offense he might not only be tried, but convicted. And upon what principle ? Because the greater includes the lesser as *356to'each of the less, there was practically an indictment or charge, to which the prisoner is required to respond and does respond by his plea of “ not guilty.” This plea denies not only his guilt of the offense charged, but of every other other included in it, as above defined. Now if he is acquitted of the higher, he is only acquitted of that charged, if found guilty of a lower. It might be better to have the entry made so as to show formally the acquittal, and that the prisoner, upon the second trial, was held upon the charge of manslaughter. Or as Mr. Bishop (1 Cr. Law section 677) says, “ the turning off of the dead matter by the prosecutor by nol pros, is the more orderly and neat way.” And yet, •while quoting this language, we do not deem such nol pros .¡necessary for the protection of the prisoner’s right, nor appropriate; for by the verdict the prisoner is discharged ffrem further prosecution as to such “ dead matter,” and the .«en’tmmg of a nolle is 'entirely useless. But what we mean as, "that the symmetry and order of business would be best maintained by having the record show a formal discharge, and "that itlke subsequent proceedings were, as for the offense, for which he obtained a new trial, manslaughter in this case, Or whatever if might be in any given case.
And these views are as we think amply sustained by the authorities. We first direct attention to those which it is claimed hold adversely. In Morris v. The State, 1 Blackf. 37, the «question, is disposed of without argument, and by a general remark of the judge delivering the opinion. In United Stales v. Harding, Wallace, Jr. 147, all that is found is a remark-of Mr. Justice G-rier, to the. prisoners, when determining the motion for a new trial, but which is made without reference to .authorities and without an attempt to how its correctness. State v. Commissioners, &c., 3 Hill, S. C. 241, was by a majority of the court, and seems to hold ¡as el&imedby the-State in this instance. Mr. Bishop (1 Cr. 677)) says: “Upon principle, if a prisoner after such finding, and without a nol pros, is granted a new trial, he would *357seem to stand, in respect to those parts of the allegation on which the jury were silent, in the same position as in the case of a verdict too defective in form to sustain any judgment, and so liable to be tried for the whole.” To sustain this he gives no reference, but leaves the question without discussion or examination. Mr. Wharton presents this distinction: “If the indictment contains several counts, then an acquittal upon one count and a conviction on others, would enable the prisoner to insist upon, such acquittal if a new trial should be granted; but not so where there is but one count, and a new trial after a conviction of the inferior degree of offense. To support the distinction he' cites the above named case in 1 Blackf. 37, and Wallace, Jr. 147.
Opposed to these authorities, are the following cases: Mr. Bishop in the section preceding that quoted, says where the verdict finds the prisoner guilty of part of a charge and not guilty of another, as where there is but one count, guilty of manslaughter and not guilty of murder, he cannot, if a new trial is granted him, be convicted of the matter of which he was acquitted on the first. (Section 676.) And see the following cases: State v. Ball, 27 Mo. 324, where it is said that an affirmative verdict, in response to an indictment for murder in the first degree, of “ guilty of murder in the second degree in manner and form as charged,” is by implication an acquittal of murder in the first degree. People v. Gilmore, 4 Calf. 376; State v. Hornsby, 5 Louisa. 558; Slaughter v. The State, 6 Humph. 413; Jones v. Same, 13 Texas 184; Brennan v. The People, 15 Ill. 517; Scott v. Ross, 29 Mo. 32. These cases are of force in favor of the view here taken, because in each the indictment was murder either in the first or second degree, and the conviction on the first trial for a lower offense. And see further, 2 Virg. Cases 311; 2 Tyler 472; 9 Verg. 335.
Nor can we agree with counsel for the State in the position that as the conviction was for manslaughter on the second trial, there was therefore no prejudice to the prisoner in *358refusing the instruction asked. This same position was taken by the attorney for the State in the Ross case, 29 Mo. 82, and overruled under precisely similar circumstances. There the prisoner was indicted for murder in the first degree, was tried and convicted of murder in the second degree. On appeal this judgment was reversed, and on a second trial a similar verdict ivas found, except that the jury found expressly “not guilty” of murder in the first degree. On the second appeal, the very point now under consideration was urged by counsel. It was overruled, however, the court holding that all the instructions based upon the hypothesis that defendant could be convicted of murder in the first degree,' were erroneous. And this view seems to us both just and reasonable. The right of every person charged with crime to an impartial trial, in our opinion would be very much infringed upon, if he could be tried at the same time, before the same jury, for an offense of which he had been acquitted. In the case before us, for instance, the judge charged the jury very fully and ably upon .the'law governing the offense of murder in the second degree, as also of manslaughter. All this was before the jury, for their consideration and discussion on the testimony •submitted; and the reasonable and necessary effect of it, as it seems to us, must have been to confuse and mislead them and prejudice the defendant’s cause. Without enlarging, therefore, we unite in the opinion that the case does not fall ; within the rule contended for by the State.
The court in its instructions in chief, as also in those asked by the State and given, expressly tell the jury that under the indictment they could find the defendant guilty of murder in the second degree. As the record itself, as we view it, shows an acquittal of this offence, we think the instructions were erroneous (without reference to the refusal of the one asked by the defendant on the same subject) though the plea of former acquittal was not formally pleaded.
II. The prisoner is indicted for the murder of one William *359Tate. On the trial, as shown by the bill of exceptions, two witnesses gave testimony, “that deceased in the early part of the night after he was shot, made statements as to the cause of his death, which were verbal, and permitted to go to the jury as dying declarations.” The State in the further prosecution of the cause, introduced one Taylor, a justice of the. peace, who testified that towards morning of the same night he wrote out a statement for deceased, which was presented and permitted to go to the jury. In this statement, which was verified by deceased, he gives a brief history of the circumstances, attending the shooting, which resulted in his death. To the introduction of this evidence the defendant objected and now assigns the same as error.
It is not objected that the deceased at the time of making these statements was not under a sense of approaching dissolution. The objection is that both declarations should not have gone to the jury, or if so, that the written statement should only have been used to refresh the memory of the witness.
From the condition of the record, the point made by appellant does not arise. Whether the oral declarations of deceased, as testified to by the witnesses were the same in substance as those contained in the written, sworn declarations, does not appear. If not then eertainly they were admissible. If the only evidence of what he stated, was reduced to writing and signed by him at the time it was made, then the writing, if existing should be produced; and neither a copy or parol evidence of such declarations could be admitted to supply the omission. And if the writing and the oral statements were the same, then the absence of the writing should be accounted for, before evidence of the oral 'statement could be produced. If however the declarations were repeated at different times, and one of them should be reduced to writing, covering different ground and referring to different matters-from those comprised i.n the verbal statements, then both may be introduced. (1 Greenl. section 161; *360Whart. Cr. Law 312, and cases there cited.) The statement itself if made in extremis, may be received in'evidence.
III. Some objections are urged to the instructions given by the court. These instructions are very voluminous, covering some twenty pages of the record. As a whole we deem them entirely correct, giving to the jury the law of the case with much precision and accuracy. If upon any proposition involved, all of the law was not stated, this cannot avail the defendant, if that which was given was correct. And it is to this aspect of the instructions that the objections extend. Thus several abstract propositions are stated, that are undeniably correct. Rut, says the defendant, they are not correct under all circumstances, or without qualification. This may be true, and if the facts in the case justified, the qualifications might have been asked and properly given. If not asked however, or if the circumstances did not demand it, there was no error in stopping with the statement of the general rule. Thus the definition of voluntary manslaughter as found in the books, is repeated by the court almost literally. To this the prisoner objects, because the law governing cases of manslaughter where the fighting may not be voluntary, is not also stated. For this there was no necessity, as far as we can see, or if any, the defendant by asking an instruction could have had the same before the jury. And the same remark might he made of other objections urged.
For the error, in refusing the instruction asked on the subject of the former conviction and acquittal, as well as for those given on the same subject, the judgment is reversed.
Judgment reversed.