¶1The indictment in this case contains a single countfor murder, which is framed according to the form given in the Code, p. 698, form No. 2. It wants many of the attributes of a common-law indictment. — See note to Arch. Grim. PI. (by Waterman), vol. 2, pp. 206-11, et seq.
¶2Under the common law, felonious homicide has different degrees of guilt — to-wit: murder, and manslaughter. — Bishop on Or. Law, § 300. Murder is not always willful; neither is every willful killing, murder. — lb. The same thing may be affirmed of manslaughter. — lb.
¶3Homicide per infortunium is felonious, if the killing occurred in the prosecution of an unlawful act. It is murder, if the unlawful act was a felony, although there may have been no intention to injure the deceased. If the unlawful act was simply a misdemeanor, the killing is only manslaughter. — ° Arch. Or. PI. (by Waterman), 2d vol., 216, and notes. This last class is defined as manslaughter in the second degree, under section 3085 of the Code.
¶4The testimony of the witness Dinah, in the direct examination, tends to show that the act which caused the death in this case, was willful; and, so far as we can discover, if that be the case, the defendant is guilty of murder. On cross-examination, the same witness stated, “ that it was possible the prisoner struck the deceased in wresting the axe from the hands of the witness ; that prisoner was then between witness and deceased, and the axe, as it was wrested out of the hands of witness, was jerked round towards deceased ; that deceased did not receive but one blow with the axe, and witness would not be positive that the prisoner intended to strike deceased with the axe, but that it was her impression that prisoner struck at deceased with the axe, after wresting the axe from witness.”
¶5*25The weight of this testimony, taken in connection with what the witness had previously said, if such previous statement be believed, we will not undertake to determine. If the inquiry was material, it was the right of the prisoner to have it weighed by the jury. — Ward v. The State, 28 Ala. 53; Partridge v. Forsyth, and Ala. & Tenn. Rivers Railroad Co. v. Kidd, at the present term.
¶6It is contended, that the testimony drawn out on cross-examination tended to show that defendant was, at most, engaged in an attempt to commit an assault and battery on Dinah, a slave ; and that the law knows no such offense. We can not assent to this proposition. One slave may commit an assault and battery on another slave. — Code, § 3317 ; Flanagan v. The State, 5 Ala. 477; Elijah v. The State, 1 Humph. 102.
¶7We hold, that if a slave, in the attempt, unjustifiably, to commit an assault, or assault and battery, on another slave, kill a white person by misadventure, he is guilty of involuntary manslaughter, under section 3312 of the Code.
¶8It is contended for the prosecution, that the inquiry, whether the prisoner was guilty of murder or involuntary manslaughter, was immaterial, and therefore the charges asked should not have been given. The Code (§§ 3504 and'3601) is referred to in support of this argument. Section 3504 can exert no influence on this case, because this indictment is framed according to the form given in the Code, and not according to the common law.
¶9Section 3601 simply provides for “offenses consisting of •different degrees.” However murder and manslaughter, if committed by a white person, might be classed, they are not one “ offense consisting of different degrees,” when committed by a slave. The punishment of-the latter offense has been materially changed and aggravated by the Code, and hence it must be regarded as a distinct statutory offense. See authorities cited in Flanagan v. The State, 5 Ala. 480 ; Chit ty’s Or. Law, 290; Williams v. The State, 15 Ala. 263.- Looking to the punishment as one of the tests of aggravation, it stands side by side with murder. This section, then, cannot aid the prosecution.
¶10The decision in Nancy’s case, 6 Ala. 483, is not intended *26to be disturbed by this. In that case, the indictment charged •more than the statute required ; to-wit, an intent to commit the crime of murder. The court regarded that averment as surplusage, and sustained the conviction. This was the entire decision, however the judge may have expressed himself. Under the statute, as it then existed, and now exists, no such offense was known, as an assault with intent to commit murder by a slave. The intention to kill a white person was found by the jury, and the requirements of the law were complied with. — See Stedman’s case, 7 Por. 495.
¶11We hold, then, that under an indictment charging the defendant with murder, he can not be convicted of involuntary manslaughter, whether tile indictment be framed under the Code, or according to the common law. The reasons why he can not be convicted under the Code are shown above. He can not be convicted under a common-law indictment for murder, because in that case, the offense, involuntary manslaughter, is not “ charged or described according to the common law.” In criminal cases, we have no right to depart from the rules of the common law, to a greater extent than the statute authorizes. — Flanagan v. State, 5 Ala. 480.
¶12The first charge asked was properly refused, because it erroneously assumed that a slave could not commit an assault and battery on another .slave. The second charge should have been given, for the reasons stated above.
¶13The evidence of a previous quarrel between the prisoner and Dinah was properly received. Whether, in the, event the homicide was involuntary, the prisoner entertained the intent to murder Dinah, was a material inquiry, in defining the character of the offense actually committed. If the deceased came to her death by a misdirected blow aimed at Dinah, the homicide was murder, involuntary manslaughter, or excusable, as his intent was felonious, simply unlawful, or justifiable. — Case of Balaam, 17 Ala. 451; Johnson v. The State, ib. 618; Martin and Flinn v. The State, 28 Ala. 72.
¶14The case of Skains & Lewis v. The State, 21 Ala. 218, was an indictment for an affray. Malice is not an ingredient in that offense. The cases are entirely dissimilar.
¶15For the error pointed out, the judgment of the circuit *27court is reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by-due course of law.