ON Application for Rehearing.
. : Fenner, J.The brief for rehearing, filed by the learned Attorney General, fails to produce a single case which does not fall distinctly Within the principles of our original decision herein, and thus confirms our conviction of its correctness. Indeed, the more we have reflected-upon it, the better satisfied have we become that the doctrine advanced by the State'is inconsistent with the fundamental principles of criminal-law. ,
■!' Its-first idea is, that nó man can- be,convicted of any crime with: which'he has not been distinctly and specifically charged by-indictment or information. Therefore, an indictment can support conviction tiff no offense which is not clearly expressed or necessarily included iff •its terms.'1 Where the major offense charged necessarily includes a-minor offense, the indictment includes the latter and will-support Conviction therefor.. But when the major offense does, not necessarily include the minor, but might be fully proved without including-proof of the minor, how can it be said that the-indictment, in charging the-major, has also charged the minor offense? How does if inform the defendant that he is prosecuted for the latter, when, for ought that appears on the face of the bill, the State may intend -to establish thei major offense by- evidence not at all supporting the minor ? Obviously, the requirement of the law is not-satisfied by the fact that.-the evidence-in support of the crime charged may accidentally include proof of a-Separate-and distinct¿crime, though of the same-general character, - •
*735Our decree in this case was formulated upon the decree in Pratt’s case. Complaint is made that we erred in discharging the defendant, and should have held him. in custody to abide further action in the court below.
The question is not free from difficulty, and desiring argument thereon on this point alone, the rehearing applied for is granted.
■ The Chief Justice and Manning, J., adhere to the dissenting opibion of the latter, and think the judgment of the lower court should be affirmed.