Harris, J.,
delivered the opinion of the court:
The plaintiff in error was indicted in the Circuit Court of Carroll county for the murder of one Valentine Ashley, not alleging that he was a white man. Upon this indictment a verdict of guilty of •manslaughter 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 offence found was the manslaughter of a slave, which is not a capital offence, or the manslaughter of a white man, which is punished capitally by our laws. The judgment was therefore arrested, indictment quashed, and the prisoner held to answer a new indictment.
At the next term of the court the prisoner was indicted for the manslaughter of Yalentine Ashley, a white man; and in his defence thereto relied on the plea of a former acquittal for the same offence, 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 verdict of guilty, and judgment.
The action of the court, in sustaining the demurrer to these pleas of a former acquittal, is the error assigned here.
Ordinarily, an acquittal on an indictment for a greater offence is a bar to a subsequent indictment for a minor offence included in the former, wherever, under the indictment for the greater offence, the defendant could have been convicted of the less. An acquittal oti an indictment for a minor offence 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.
To enable the party relying on the plea of former acquittal to avail himself of this defence, it must appear that he could have leen convicted under the first indictment for the offence charged in the second.
In 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 whatjudgment to pronounce. The manslaughter of a slave by a slave in our law is not a capital offence, while the manslaughter of a white man by a slave is made capital by statute.
The defendant was not in jeopardy for the offence with which he is now charged, and cannot avail himself of that defence.
Judgment affirmed.