the custody of the sheriff of Albany county, to be held by him under the senate's warrant of commitment-will not interfere with the exercise of a power which the body exercising it claims to possess, and which it supposes it is wielding for the best interests of the state.

In conclusion, a word should be added upon a point made in behalf of McDonald, to the effect that the Penal Code has taken from the legislature all power to punish for contempt. The argument is that, by section 69 of such Code, if he unlawfully refused "to answer any material and proper questions" asked by the senate's committee, he could be indicted for a misdemeanor, and as his offense was thus punishable according to the provisions of such Code it was to be punished thereunder "and not otherwise." § 719. This is specions, but not sound. The Penal Code prescribes and relates to the "punishments" to "be inflicted only upon a legal conviction in a court having jurisdiction," § 9; and the Code of Criminal Procedure prescribes "the manner of prosecuting and convicting criminals." 8. The object of section 719 was to declare when the old penalties attached to crime, on conviction after a prosecution in and before a competent court, and when the new were applicable. After declaring that the provisions of the Code should have no retroactive effect, it explicitly states that "an offense committed or other act done, at any time before the day when this Code takes effect must be punished according to the provisions of law existing when it was done or committed;" while one "committed after the beginning of the day when this Code takes effect, must be punished according to the provisions of this Code, and not otherwise." A general statute, as a rule, does not repeal a special one, and therefore a general code of laws relating to the penalties which courts must impose on convictions for crime according to the usual mode of procedure do not repeal special provisions to punish summarily for contempt. The words "not otherwise" in such section simply forbid courts, in punishing criminals for offenses to which the penalties of the Code are applicable, to do so "otherwise" than as such Code provides. It is unnecessary to pursue this point further. A comparison of the various sections with each other, and the language of the whole of section 719,

and not of a single paragraph read alone, make the meaning clear. If all power of the legislature to punish summarily for contempt is repealed, then all, which courts had, has also vanished; and if the latter had been swept away, as there was no punishment by the court summarily for contempt, it was useless to declare, as has been by section 680, that an act "punishable as a contempt of court" was also "punishable as a crime." This recognizes that the provisions as to court contempts are not repealed by the Penal Code; and if those are not, then legislative contempts are not, for both are punishable under such Code as misdemeanors.

It remains only to be said that to a higher court than the present, the very grave questions involved in the present proceeding are committed, in the hope, however, that the views expressed in this opinion will, even though not adopted, aid in arriving at a sound and judicious conclusion thereon. If the labor and thought which have been given to the subject shall, in any way, assist the tribunal of review, he, who has given to it much of both, will be fully compensated.

Oper and Terminer-Fulton County.

October, 1883.

PEOPLE v. COLE.

INDICTMENT FOR MURDER.

An indictment containing varying allegations in its different counts as to the manner and means of the commission of the crime, but which shows upon its face that those counts relate to but one and the same transaction, is good.

Two or more separate and distinct felonies may be alleged in different counts in the same indictment, provided they arise out of the same transaction, which they describe in various ways to meet the possible evidence in the case.

Killing effected by a person engaged in the commission of a felony is murder in the first degree, notwithstanding that the act which produced death was not intended to kill.

Demurrer by the defendant, Geo. T. Cole, to an indict

ment.

The facts appear in the opinion.

Andrew J. Mellis, for defendant.

C. M. Parke, district attorney, for the people.

TAPPAN, J.-The defendant, George P. Cole, was indicted at this court for the crime of murder in the first degree for feloniously killing one Samuel Peters Murray.

Upon his arraignment, he interposed a demurrer to the indictment upon the grounds,

First. That more than one crime is charged in the indictment, within the meaning of sections 278 and 279 of the Code of Criminal Procedure.

Second. That the facts stated do not constitute a crime, as provided by subdivisions 3 and 4 of section 323 of such Code.

The first eleven counts of the indictment charge the crime of murder in the first degree at common law and under the Penal Code, section 183.

The twelfth, thirteenth, fourteenth and fifteenth counts severally charge the commission of the crime of assault in the second degree, and then aver that the accused, while engaged in the commission of that felony, did willfully and feloniously kill and murder the said Samuel Peters Murray.

In every count the crime is alleged to have been committed by the accused at Johnstown, in the county of Fulton, in the state of New York, on the 18th day of July, 1883.

The first, second, third, fourth, fifth, eighth and ninth counts allege the killing to have been effected with a certain stone. The twelfth and fourteenth counts allege such killing to have been effected with a certain stone, being then and there an instrument likely to produce grievous harm. In the last named count the words are "grievous bodily harm."

The sixth, tenth, eleventh and fifteenth counts allege the killing to have been effected with a certain blunt instrument,

to the grand jury unknown, and in the thirteenth and fifteenth counts respectively, the allegation is, "being then and there an instrument and thing likely to produce grievous bodily harm."

The seventh count alleges the killing to have been effected with a certain piece of brick.

The allegations of the different counts vary in respect to the manner of effecting the killing and the part of the body upon which the wounds from which death resulted were inflicted, and the extent of such wounds.

Upon the argument, the counsel for the defendant claimed that it appears upon the face of the indictment, that more than one crime is charged therein. If this is so, the defendant must have judgment upon the demurrer. Code Crim. Pro. § 323, subd. 3; Mayo v. State, 30 Ala. 32.

Section 278 of this Code provides that "the indictment must charge but one crime, except as in the next section provided." And the next section provides that "the crime may be charged in separate counts to have been committed in a different manner or by different means, and when the acts complained of may constitute different crimes, such crimes may be charged in separate counts."

Before the enactment of the Code of Criminal Procedure, it was the law that there might be a joinder of various counts in the same indictment stating the same offense distinctly and separately in various ways so as to meet the evidence, and the court would not put the prosecutor to an election. Nelson v. People, 5 Park. Cr. 39; S. C., 23 N. Y. 293; Lanergan v. People, 6 Park. Cr. 209; S. C., 50 Barb. 266.

In People v. Infield, decided in the General Sessions of the City of New York, in December 1882, reported in 1 N. Y. Crim. Reps. 146, Recorder Smyth put the same construction upon these sections of the Code of Criminal Procedure.

In that case, the indictment contained two counts, the first charging the defendant with grand larceny, and the second charging him with having received the property alleged in the first count to have been stolen, knowing at the time it was so received, that it was stolen; and it was held on demurrer interposed by the defendant, that such sections construed together permit such an indictment.

The opinion of the Recorder holds that two or more separate and distinct felonies may be alleged in different counts in the same indictment, provided they arise out of one and the same transaction, the different counts being allowed only for the purpose of describing the transaction in varying ways to meet the possible evidence in the case.

That this is the correct construction of these sections is evidenced by the amendment to section 279, made by chapter 306 of the Laws of 1883, by inserting the words "in a different manner" after the word "committed."

The first count of the indictment alleges that "the grand jury of the county of Fulton, by this indictment, accuse George P. Cole of the crime of murder in the first degree, committed as follows;" and each of the other counts allege that "the said grand jury do further accuse the said George P. Cole of the said crime, committed as follows;" such allegations in the respective counts being followed by allegations of the time, place, manner and means of the commission of the crime.

The indictment shows upon its face that the different counts relate to but one and the same transaction.

The charge is for one crime only, viz.: murder in the first degree, alleged in the several counts to have been committed in a different manner and by different means.

In Taylor v. People, 12 Hun, 212, 216, the rule of construction where an indictment charges several distinct felonies, is stated as follows: "Each count in the indictment theoretically describes a different offense, but when it is apparent from the general tenor of the indictment, that each count relates to the same transaction, and that the introduction of separate counts is not for the purpose of proving distinct offenses, but only for the purpose of meeting possible variances or defects of the evidence to establish some one of the ingredients of the felony, as described in a particular count, then the court can properly exercise a discretion to prevent a failure of justice and treat the indictment as it is, in fact, an indictment for one offense described in different ways." 2 Colby's Criminal Law, 121; People v. Austin, 1 Parker, 154.

Second. No point was made upon the argument, but that the first eleven counts of the indictment sufficiently charge