CANAL ZONE V. HOUSTON.24

charged there are four things that can be done. The defendant may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter, or, he may be acquitted. If an indictment can be sent against a man for manslaughter as no one seems to dispute, then it is but natural that 'it could be sent against him for either one of the other degrees of murder. Suppose in an affray a man is killed in a heat of passion, that there were no elements of murder in the first or second degree, can it be supposed that a prosecuting attorney, acting for the Government, could, upon his oath, file an information based on the testimony of witnesses, for murder in the first degree when he knew at the time he filed it that no such crime had been committed? If he was Convinced that the facts warranted only a verdict of murder in the second degree how could he u pon his oath, without doing violence to his conscience, file an information for murder in the first degree?
It will be noted from the above that the conclusions are reached that the information does not charge murder in the first degree, but that it does charge, and properly charges, th~e crime of murder in the second degree.
It is objected that the information is not as specific as to the place of death as it should be.
If~ charges that in the jurisdiction of the court of the third circuit the defendant shot and killed the deceased. There was no motion to make more specific, no objections taken, and no motion in arrest of judgment. At the trial thi s alleged omission was not regarded aS important and no notice was taken of it. Under these circumstances how can it be said -with any degree of sincerity that the defendant was prejudiced in any substantial right by the failure of the pleader to be more specific. The information, however, does charge that the death occurred in the third judicial. circuit, and the evidence, that it was at Colon Hospital. There is-no statement in the record to negative the fact that Colon Hospital is within the jurisdiction of the court of the Third Judicial Circuit, and yet we know as a matter of fact that it is not. At most it can only be said that there is a variance between the allegation and the proof. At the time when they should, the defendant took no advantage of this. If he had done so, an amendment could have been made, and the necessity avoided of coming to this court at all.

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