People v. Gill , 6 Cal. 637 ( 1856 )

Mr. Chief Justice Murray delivered the opinion of the Court.

Mr. Justice Terry concurred.

The prisoner was indicted for murder, charged to have been committed on the 22d day of March, 1856, and was found “ guilty of the crime of murder in the second degree.”

At the time of the killing, charged in the indictment, there was no such dime known to the law as murder in the second degree, and the party could only have been convicted of murder or manslaughter.

The Act defining the offence of which the prisoner is found guilty, was not passed until the 16th of April, 1856, and provides that, upon trials for crimes committed previous to its passage, the party shall be tried by the laws in force at the time of the commission of such crime.

It is supposed, however, that this case presents an exception to the rule thus established. The blow was given before, but the death ensued after, the passage of the last statute. The death must be made to relate back to the unlawful act which occasioned it, and as the party died in consequence of wounds received on a particular day, the day on which the act was committed, and not the one on which the result of the act was determined, is the day on which the murder is properly to be charged.

Besides this, although it is not absolutely necessary to state the precise day on which the killing took place, still, a conviction in a case like the present, where the party was called upon, by the indictment, to answer an offence under one statute, and was found guilty under another, would be bad, and ought to be arrested on motion.

The judgment is reversed, and the Court below directed to re-try the prisoner for murder.