State v. Flannigan

Tuck, J., delivered the opinion of this court. In the case of the State vs. Sutton, 4 Gill, 494 , the Court of Appeals, quoting from 1 Chit. Crim. Law, 641 , said; “With respect to the form in which a verdict should be given which thus partially convicts and acquits, it has been holden that it ought to find specifically not guilty of the higher, and guilty of the inferior charge, and that if it merely find the defendant guilty of the inferior offence, it will be of no avail.” Chitiy refers for this principle to 1 Anderson, 103, 104, and Hawkins cites the same authority.

We have examined the case in Anderson and find that the court expressly held, that a verdict of manslaughter would be erroneous if there was no finding on the charge of murder. There are cases which state, in general, that the accused may be convicted of manslaughter on an indictment for murder, without saying any thing as to the necessity of giving an express veidict as to the murder, but Chitty shows the practice in England was for the juries to say, “not guilty of murder, but guilty of manslaughter.” Hawkins’ Pleas, 620, (Ed. 1824.) 1 Chit. Crim. Law, 641 , 642.

A different practice, we understand, has prevailed in some of the judicial districts of this State, and this would seem to be consistent with the reason of the case, because, where an issue is joined on a single count in an