In Pennsylvania, in Bank v. Gries, 35 Penn. St. 423; in New Jersey, in Mutual Benefit Ins. Co. v. Rowand, 11 C. E. Green, 389; In Louisiana, in Mulligan v. Mulligan, 18 La. Ann. 20, and in Minnesota, in Knight v. Norris, 13 Min. 473, an architect who superintends a building, as well as draws the plans, was held to be a "laborer" within the meaning of the lien law. In Nevada, in Capron v. Stout, 11 Nev. 304, which was a suit to foreclose a mortgage on a mine, the foreman of a gang of miners was allowed a lien. See also, Bursee v. Griffith, 34 Cal. 382; McCormick v. Las Angeles Co. 40 Cal. 185; Thayer v. Mann, 2 Cush. 371.

To the report of the leading case, 17 Am. L. R. 97, an exhaustive and valuable note is appended, in which the cases are collected, and the legislation on the subject noticed. The writer says: "At common law a workman had a lien on goods in his possession upon which he had performed labor, and that was the extent of his preference. Such is the law at the present day, some of the states, as Arkansas, Kansas and Michigan, having enacted statutes to that effect, while the others hold such to be the law in numerous decisions. But the principle of class legislation has in recent times gone a long way beyond this. Some of the states have passed statutes giving laborers on crops, lumber and digging in mines a lien on the product of their labor, viz. Georgia, Maine, Michigan, Minnesota, New Hampshire, North Carolina, South Carolina, Florida and Wisconsin. And all the states have passed laws which resemble each other, known as the Mechanics' Lien Law, and giving to mechanics a lien on buildings, vessels, mines and wharves, upon which they have performed work or for which they have furnished materials. A few states have passed laws giving a preference to the wages of laborers in the distribution of estates in the hands of assignees and trustees, viz.: California, Connecticut, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania. Several states have enacted that either the directors or stockholders of corporations shall be liable for the wages due laborers, servants or apprentices of the corporation, as Indiana, Massachusetts, Tennessee and Michigan, which last-mentioned state enacted that the trustees of all institutions of learning should be liable

*

for the wages of those who perform labor for the institution. Many of the states have enacted laws exempting the wages of laborers from execution, viz.: California, Iowa, Kentucky, Minnesota, Mississippi, Nebraska, New Hampshire, New Jersey, Rhode Island, Tennessee and Virginia, while Kansas, on the contrary, has enacted that wages due to clerks, mechanics, laborers or servants should not be exempted, although miners' tools and stock in trade, to the extent of $400, are." The writer is evidently mistaken in his reference to the Kansas legislation on the subject, as we are informed that there is no such statute in that state. Sec. 6, Gen. Stats. of Kas., p. 474, provides that no personal property, "shall be exempt from attachment or execution for the wages of any clerk, mechanic, laborer or servant." This means that all personal property shall be subject to execution for the payment of such wages.

Reed

v. Nenberger, 11 Kas. 206; Ry. Co. v. Baker, 14 Kas. 563. The "earnings of the debtor for personal services" for three months next preceeding the execution, are exempt from execution by the laws of Kansas, if necessary for the support of his family. Gen. Stat. p. 726, Sec. 490; Id. p. 808, Sec. 157.

THE RELATION OF MANSLAUGHTER TO MURDER.

State v. Alexander. The defendant was indicted for murder in the first degree, for killing one Norrick, by shooting him with a

*In this case, recently decided by the Supreme Court of Missouri, the record shows about this state of facts: Alexander and deceased Norrick went to Southern Kansas about the 6th or 8th of November, 1873, and bought a lot of cattle in partnership. After starting home with them, they got into a quarrel over the manaer in which they were to be divided, and Norrick made threats against the life of Alexander, but they continued together, driving the cattle for two days, when Alexander hired Norrick's son-in-law, Crook, who was along, to drive in his place, and he came on the cars, claiming that he was not well. The cattle, under the care of Norrick and Crook, reached Nodaway County on the 17th of November, and were left over-night about two miles south of where Alexander and Norrick lived, Norrick and Crook going home to stay all night. On the morning of the 18th, Norrick sent Kyler, another son-in-law, to tell Alexander the cattle had arrived, and to come over and divide them, and take his share home. The wagon which the party had with them on the trip was left standing in Norrick's yard, with some of the articles used on the trip still in it. Norrick and Crook went after the cattle and drove them near to Norrick's house upon an open piece of prairie, about forty acres, fenced on the north and west. Alexander, accompanied by his brother,

shot-gun. The court instructed the jury as to murder in the first and second degrees, and manslaughter in the second degree, and the defendant was convicted of manslaughter in the second degree. The defendant claimed that the killing was in self-defense, and this view of the case was also submitted to the jury by proper instructions. From the opinion of the Supreme Court, by Judge Henry, we make the following extract:

"In its 16th instruction the court declared that if defendant, without a design to effect death, in a heat of passion, did kill Norrick in a cruel and unusual manner, by shooting him with a shot-gun, they should find him guilty of 'manslaughter in the second degree. Frank Crook, a witness for the State, testified that defendant shot twice with a double-barreled shot-gun; that defendant raised his gun, and that deceased was about ten feet from Alexander. Eldridge Kyler, for the State, testified that defendant raised up his gun, deliberately took aim and fired. On that point there was

went to Norrick's house before the arrival of the cattle, and asked for his shot gun. It was brought out from under the bed, where it had been placed the night before by Crook. and was given to Alexander, who shot both barrels off, and then reloaded them with larger shot, giving as a reason for so doing that he wanted to shoot a rabbit. Alexander was on foot, his brother on a horse. They met Norrick and Crook with the cattle as they entered the open ground. Crook had Alexander's horse, which he turned over to him, and Alexander mounted his horse, keeping his shot gun in his hands, and across the saddle before him. Norrick was on foot. Alexander directed his brother to drive a certain cow out. Whereupon, Norrick asked Alexunder how he proposed to divide the cattle. Alexander replied, by taking the pick according to contract. Norrick said he did not understand the contract in that way, and Alexander should not have the pick of the cattle. Alexander said he would. The parties were quarrelling. Norrick swore that if he divided them that way it would be over his dead body. Alexander said that was his fix, and rode off among the cattle to divide them by taking the pick. Norrick pulled off his coat and followed after him, keeping to the south ten or fifteen steps, and called out, as testified to by some of the witnesses, "Come on, boys, we'll have it out here now." Whereupon, Alexander raised his gun and shot. Some witnesses say Norrick was going directly toward Alexander and cried out, "I don't care a damn for your old shot gun." Alexaider shot a second time, immediately after the first (which did not take effect), and Norrick fell dead, the charge of shot having taken effect in his neck. Some witnesses say Norrick had a knife, others say he did not, and no knife was found about him after he was killed. Alexander gave some directions to his brother about dividing the cattle, and started to Maryville, the county seat, to give himself up. Just as he was about to start, or was starting, Crook asked him if he had killed Norrick, he replied that he was afraid he had. Five persons were present and witnessed the affray.

no contradicting evidence. It was clearly shown that defendant, a few hours before the killing, emptied both barrels of the gun and loaded with large shot, nor was there any evidence to contradict it. In his written opinion on application of defendant to be admitted to bail, the judge who tried this cause, correctly stated the law as follows: A man is taken to intend that which he does, or which is the necessary or immediate consequence of his act. To illustrate, if a man within shooting distance of another raises his gun, takes aim and fires, and the ball inflicts a mortal wound from which death ensues, the fair presumption is that he intended to kill his victim, and if so, the act is certainly murder, unless done in selfdefense.'

The case supposed by him to illustrate the principle, is the very case here, and it is a little remarkable that the court, having so clear a view of the law, should have given the 16th instruction. That defendant intended to kill Norrick is beyond a doubt. In the case of State v. Phillips, 24 Mo. 475, Scott, J., in delivering the opinion of the court, said: 'It follows, then, that this was no case for an instruction as to the law of manslaughter [murder] in the second degree, for there can be no doubt, unless we stultify ourselves and refuse to permit our judgments to be influenced by considerations which govern the rest of mankind, that Sullivan Phillips intended to kill Watson.' Those remarks are equally applicable to this case, and it was an error to give the 16th instruction. And here it may be observed that the defendant was found guilty of manslaughter in the second degree, the very degree in regard to which the improper instruction was given, of which crime there was not a particle of evidence to warrant his conviction. He was either guilty of murder in one of the degrees of which an intention to kill is an element, or the killing was justifiable."

It is not the purpose of this article to discuss the subject of criminal homicide in detail, but to present a question of practice, in the way of a criticism upon the decision of the learned judge who delivered the opinion from which the foregoing extract is taken.

The relation of manslaughter to murderThis suggests the inquiry, whether the different degrees of murder and of manslaughter are independent offenses, exclusive of one another, or whether the greater does not overlie

and include the less,-whether, while they may be considered as distinct offenses when viewed distributively, they are not all united in the greater crime of murder, as degrees or constituent parts thereof, when that crime has been committed by shooting, stabbing, or by any other act of personal violence.

It is conceded that an indictment for murder in the first degree may be regarded as an indictment for every inferior degree of homicide which may be included in the facts alleged, the same as if it contained a separate count for every degree of murder and of manslaughter. This is certainly true where the means by which the death was accomplished must be stated the same way in every count, and the crime raised from the lower to the higher grade by expressing the condition of the blood or state of the mind under which the fact was perpetrated. And the prosecution may, on the trial of such a case, drop down to any degree of manslaughter embraced in the acts and crime expressed, and demand a conviction thereof. In New York, where the different degrees of manslaughter are defined by statute, as they are here, it was held that under an indictment for manslaughter in the common law form, the defendant might be convicted of manslaughter in any of the statutory degrees. People v. Butler, 3 Parker, C. R. 377. The statute declaring the offense to be manslaughter where the killing was in heat of passion, without a design to effect death, simply negatives the existence of malice aforethought, or rather affirmatively expresses the absence of such malice, and if, on a charge of murder, the unlawful killing be proved, but the circumstances showing malice are absent or rebutted, then the killing was without design to effect death, and that part of the indictment charging malice aforethought is treated as surplusage. Whether the killing be murder in either degree, or manslaughter in any degree, or was justifiable, depends upon the evidence, and is a matter for the decision of the jury, under proper instructions presenting the law of the case in its different aspects; but, of course, where the evidence all tends to prove a particular offense or degree of homicide the court may confine the attention of the jury to such degree, and no instruction should be given in relation to any degree which the evidence does not tend to prove. But where the offense consists of different degrees, the

greater including the less, the proof of the greater proves the less, and although the evidence may fully establish the higher degree in every particular, how can it be said that the accused is not guilty of the lower offense, or that there is not a particle of evidence to sustain a conviction for it. Proving the greater does not disprove the less, but it proves the less as a fact involved in the greater, and both being proved a conviction for either may be had, at the election of the prosecutor, who has a right to make such election, and the court of errors has no right to interfere.

The different degrees of homicide, as defined by statute, are all carved out of murder and manslaughter, as known to the common law. No new offense has been created, and no homicide which was not criminal at common law is made so by statute, but it is divided into degrees, and the punishment graded to meet the various circumstances of the case. There were no degrees of murder or of manslaughter at common law. All criminal homicide was either murder or manslaughter, but the latter. was included in the former as a constituent element thereof, or it might exist as a distinct offense, which was the case where there was no malice aforethought. At common law, murder is the unlawful killing of a person with malice prepense or aforethought, either express or implied, and manslaughter is the unlawful killing of another without malice express or implied, as where the killing is done upon sudden heat, caused by sufficient provocation, without a design to effect death,-the heated state of the blood and the provocation, in the eye of the law, which looks to the frailties of human nature, take the place of, or rather exclude design, though the killing may have been with a deadly weapon and wilful. Murder differs from manslaughter in the want of malice, a condition of the blood or mind at the time of the act. And the same distinction exists between these offenses under the statute. Murder is committed with malice aforethought; manslaughter, in the heat of passion, without a design to effect death, i. e., without malice aforethought. And when the evidence shows that the act was the result of sudden heat caused by a sufficient provocation, the offense is nothing more than manslaughter; but it does not follow that this offense is not made out because there was a design to kill or no heat of passion. Indeed, it

has been expressly ruled by some of the ablest judges in this country, and sanctioned by our authors upon criminal law, that it is no defense to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was therefore murder; but the defendant, in such case, may, notwithstanding, be properly convicted of the offense of manslaughter. Com v. McPike, 3 Cush. 181; Selfridge's case, (Cases on Self-defense 20). If the defendant may be convicted of manslaughter upon an indictment for that offense, when the evidence proves him to be guilty of murder, why may he not be convicted of manslaughter upon an indictment for murder, which as we have seen is an indictment also for manslaughter, when the evidence proves him guilty of murder? He may be so convicted, must be the answer.

The law has wisely provided, and the courts have appreciated its wisdom, that, upon an indictment for any offense consisting of different degrees, the jury may find the defendant guilty of any degree of such offense inferior to that charged in the indictment. 1 W. S. 513, Sec. 14. The different degrees, or degree submitted to the jury must be defined by the instructions, and be proven by the evidence, as already indicated, and the court may take a conviction for any degree that is proven, no matter how much more may be proven. Let us illustrate the application of a different rule. Suppose the indictment be for murder; deliberation, premeditation and malice aforethought are now essential ingredients, and the court instructs the jury that unless they find the existence of those ingredients, the defendant must be acquitted. Eleven of the jurors are satisfied that it is a case of murder, and one thinks otherwise, notwithstanding the evidence all tends to prove murder; but all agree that the evidence proves an unlawful killing-manslaughter, but there can be no conviction for anything but murder, and so the jury cannot agree and must acquit. Then suppose you try him on an indictment for manslaughter, charging the unlawful killing in heat of passion without a design to kill, simply negativing the existence of malice aforethought, and on the trial it should appear from the evidence (and defendant would endeavor to make it so appear) that it was done in a cool state of blood with intent to kill. The de

fendant cannot be convicted of murder, because that offense is not charged. The State cannot abandon the present prosecution and try him again for the higher degree, as we shall presently see. The defendant objects to a conviction of manslaughter because the offense is murder or nothing, and the court instructs that if the act was committed with malice aforethought the defendant must be acquitted. Eleven of the jurors are satisfied that it is a case of homicide with malice, etc., and one thinks otherwise,, but all agree that the evidence proves an unlawful killing, and they would have no difficulty in convicting of manslaughter, if they could do so, notwithstanding the evidence proves a case of murder, and so the defendant would go unpunished, not because he was not guilty of either offense, but because he was actually guilty of both. This would often be the result should the law regard every degree of homicide, as defined by the statute, as an independent offense exclusive of the others.

1

Another consideration which forever disposes of the theory that these offenses are exclusive of one another is that if they were so the accused might be tried upon a separate indictment for every degree of homicide from manslaughter in the fourth degree to murder in the first degree-a thing not to be thought of. But it is well settled, that an acquittal on an indictment for a greater offense, is a bar to a subsequent indictment for a minor offense included in the former, whenever, under the indictment for the greater offense, the defendant could have been convicted of the less. Whar. Cr. L. §. 560. And when a man has been acquitted generally upon an indictment for murder, autrefois acquit is a good plea to an indictment for the manslaughter of the same person; and e converso, where a man has been accquitted on an indictment for manslaughter, he shall not be indicted for the same death as murder; the fact being the same and the difference only in degree, i.e., the offenses being the same in law and in fact. 4 Bl. Com. 336; 12 Pick. 504. So, if a man be convicted on an indictment for manslaughter, this will bar an indictment for murder, 1 Russ. on Cr. 565; 1 Chit. Cr. L. 455; State v. Standifer, 5 Porter 523. It has been well said that an acquittal for manslaughter is a bar to a prosecution for murder, for if the defendant were innocent of the modified offense,

he could not be guilty of the same fact with the addition of malice. Com v. Roby, 12 Pick. 504; 2 Hale P. C. 246. And this even where the first charge was for manslaughter in the third degree. Hunt v. State, 25 Miss. 378.

I think I have shown that it is not error to convict of manslaughter when the indictment and evidence make a case of murder. Besides if such a conviction be error it is in favor of defendant, and he has no ground of complaint. But it is urged as a reason for holding otherwise, that if the case had been submitted to the jury upon the single issue of wilful murder or justifiable self-defense, the jury would have considered his defense with more charity, rather than be the means of taking his life, and they are not to be coaxed away from the true issue by an offer of medium ground. There is no argument in this, for the same state of facts which would exculpate the defendant from the guilt of murder would completely shield him from a conviction of manslaughter; the jury must pass upon the validity of his defense in either case and pronounce against it before they can convict of any crime. It does not lie in his breast to say what disposition shall be made of his criminal conduct. When a man has done a criminal act, it is the general rule that he may be holden for any crime, of whatever nature, which can be legally carved out of his act. He is not to elect, but the prosecutor, who may disregard a part of the act and hold him for the residue. If the evidence at the trial shows that he is guilty of a higher or a lower offense, or one differing in nature, whether existing under statutes or at common law, than he stands indicted for, he cannot be heard to complain,-the question being, whether it shows him to be guilty of the one charged, or of which he is convicted. Bishop Cr. L. § 804.

The

In Landers v. State, 12 Tex. 462, the evidence proved a deliberate killing by lying in wait, and the defense was justification on account of previous threats and fear that they would be executed at some future time. defendant was found guilty of murder in the second degree by reason of erroneous instructions defining a case of murder in the first degree to be murder in the second degree, and the defendant sought a reversal on that ground. The Supreme Court of Texas said there was no doubt of the error, but it operated in favor of the defendant, and not against

him, and upon no principle could it be maintained that for such an error the court would be warranted in reversing the judgment. But the Supreme Court of Missouri, to be consistent, would have to reverse such a case. According to this court, if the evidence prove a case of murder in the first degree, it was no other crime, and there was not a particle of evidence to sustain a conviction of murder in the second degree. Where the killing is done deliberately and premeditatedly, it is not done without premeditation, and therefore every other degree of homicide is excluded. This is the plain logic of their decision. Would any court which has ever given the subject proper reflection reverse a conviction of murder in the second degree because the evidence proves a case of murder in the first degree, or a conviction of manslaughter because the evidence shows a case of murder. To do so the court says, in effect, to the accused, "Your act in killing your neighbor was murder in the first degree or it was justifiable. The jury have decided that it was not done in self-defense, else they would have acquitted you, but the court and prosecuting attorney who tried your case relinquished the matter in aggravation, so much of the facts or crime as involved malice prepense, and convicted you of manslaughter and unlawful killing only. They should have held you for the higher crime. The error was in your favor and operated to your benefit, it is true, and you cannot be tried again for any higher offense or degree than the one which you were convicted of, but if the lower court will not hang you or clear you, this court will reverse the case and set you free." How much better it would be were the court to say in all such cases, as it did, Judge Henry speaking for the court, in State v. Brown, 64 Mo. 367, where the facts were very similar to the facts in State v. Alexander. "The instructions presented the case more favorably for defendant than he had a right to ask, and the jury treated him with remarkable leniency, and he has no reason to complain."

H. S. K.

IN the case heard in the English Rolls Court last week, the right of pannage was discussed at great length. The Master of the Rolls said all the dictionaries were agreed that pannage was simply a right to go into another man's wood and allow pigs to eat the acorns or beech mast which fell on the ground. The drovers of the pigs had no right to take the acorns off the trees or even to shake them, and the owner of the woods had a right to cut the trees when ripe for so doing, and to lop the pollards in the ordinary course of management.