¶1The plaintiff in error was indicted in the circuit court of Carroll county for the murder of one Yalentine Ashley, not alleging that he was a white man. Hpon this indictment a verdict of guilty of ma/nslaughter was rendered, and upon the motion of the plaintiff in error, this judgment was arrested in the court below, upon the ground that the record did not • show whether the offense found was the manslaughter of a slave, which is not a capital offense, or the manslaughter of a white man, which is *1403punished capitally by our laws. The judgment was, therefore, arrested, indictment quashed, and the prisoner held to answer a new indictment.
¶2At the next term of the court, the prisoner was indicted for the manslaughter of Valentine Ashley, a white man; and in his defense thereto, relied on the plea of a former acquittal for the same offense, setting out specially all the proceedings had on the former trial. To these pleas the district attorney demurred, the demurrer was sustained, and a jury and a verdict of guilty, and judgment.
¶3The action of the court in sustaining the demurrer to these pleas of a former acquittal is the error assigned here.
¶4Ordinarily an acquittal on an indictment for a greater offense is a bar to a subsequent indictment for a minor offense included in the former, wherever, under the indictment for the greater offense, the defendant could have been convicted of the less. An acquittal on an indictment for a minor offense is generally no bar to a subsequent indictment for the greater. Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of former acquittal is generally a good bar.
¶5To enable the party relying on the plea of former acquittal to avail himself of this defense, it must appear that he could have teen convicted, under the first indictment, for the offense charged in the second.
¶6In the case before us, no conviction of manslaughter could have been legal under the first indictment. The indictment failing to show whether the deceased was a white man or a slave, the court could not know what judgment to pronounce. The manslaughter of a slave by a slave, in our law, is not a capital offense, while the manslaughter of a white 'man by a slave is made capital by statute.
¶7The defendant was not in jeopardy for the offense with which he is now charged, and cannot avail himself of that defense.
¶8Judgment affirmed.