The opinion
MoNtgombey, J.
(concurring in the result). If the evi- *560 deuce before the grand jury disclosed a case of murder in tbe second degree only, I think that that body should have made their finding on the bill that was sent to them (a bill for murder in the usual form before the Act of 1893) simply “A true bill,” without the qualifying words of “murder in the second degree.” It was provided in the act that there need be no “alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the'first or second degree.” I think that if a grand jury, since the Act of 1893, in the investigation of a homicide, find from the evidence, that a killing has occurred which amounts to manslaughter only, the bill of indictment should be found and returned for manslaughter. But, if the homicide is of higher culpability than manslaughter, then the grand jury should return a true bill of murder in the form in use before the statute. The petit jury is the tribunal upon which is devolved by the statute the duty of fixing the degree of guilt, whether murder in the first or murder in the second degree, upon the evidence of both the State and the prisoner. The distinction between murder in the first and murder in the second degree, under the Act of 1893, is not for the grand jury to point out and determine, but is a matter for the action of the petit jury, after hearing all the evidence and receiving the instruction of the Court. The law declares that the form of the indictment is immaterial as between the two crimes, and that the petit jury shall be charged with the duty of declaring the grade of the crime as between murder in the first and murder in the second degree, and not the grand jury. And this appears to me to be necessarily so, for, if the Solicitor should conform to the wishes of the grand jury, as expressed in their finding, and send in a bill for murder in the second degree, the bill would *561 be in tlie exact language of the one upon which the grand jury undertook -to act. I am therefore of the opinion that the grand jury transcended its power in finding the bill “A true bill for murder in the second degree,” in that it undertook to prescribe a verdict for the petit jury, and that his Honor was right in sustaining the demurrer.