valid, though the others never come in to be tried, or die before the time of trial.1

Upon an indictment for burglary and larceny against two, one may be found guilty of the burglary and larceny, and the other of the larceny only.2

Two cannot be convicted upon an indictment charging a joint larceny, unless there be evidence to satisfy a jury that they were concerned in a joint taking.3

Where two persons are indicted together for stealing the same goods, one cannot be convicted of petit larceny and the other of grand larceny.*

Though two or more persons jointly indicted cannot be convicted of a joint offence, where these offences are proved to have been separate; yet they may be convicted of their separate offences, as if separate indictments had been found.5

§ 123. VERDICT FOR A LESS OFFENCE THAN IS CHARGED. Upon an indictment for any offence consisting of different degrees, as prescribed by the Revised Statutes, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused person guilty of any degree of such offence inferior to that charged in the indictment, or of an attempt to commit such offence."

The above provisions of the Revised Statutes have been decided to be constitutional, for a prisoner charged with a crime in one degree, where the statute allows the jury to convict him of the same crime in an inferior degree, is bound to take notice of such statute and prepare to meet the charge in all its inferior degrees.?

But a conviction of a lower degree of an offence, than that charged in the indictment, can only be had where the indictment avers the facts with sufficient particularity of description necessary to constitute the lower degree of the crime.

• State v.

Larumbo, Harper, 183; State v. Davis, 3 McCord, 187.

• Chatterton v. Peo., 15 Abb., 147; 4 Hawk., 53; 1 Arch. Cr. Pro., 96. 2 R. S., 702, § 37.

Peo. v. Dedien, 17 How., 224.

The above cited provision of the statute means only that there is no legal objection to the conviction, arising out of the circumstance that the crime is divided into degrees. It applies only when the indictment includes a true description of the act done, and of all the circumstances defining the minor offence, and alleges, in addition, circumstances which; if proved, would raise the crime to the higher degree. The act proved must be the indentical act set forth in the indictment, and the circumstances descriptive of the inferior degree of which the defendant is to be convicted, must be also parts of the offence contained in the higher degree, and contained in the indictment.1

But in an arson case the court held, that the defendant might be convicted of arson in the second degree, as having burned a building not the subject of arson in the first degree, if the jury disregarded the evidence offered to show that there was some human being in the dwelling at the time; for the charge of firing a building with a human being in it includes the lesser crime of firing it without one in it.2

Upon an indictment for a felony the defendant may be convicted of a misdemeanor. The above provision of the statute has not affected the common law rule, respecting the right to convict of an inferior offence upon an indictment for a superior one.3

The statute also further provides that, upon an indictment against any person for an assault with intent to kill, it shall and may be lawful for the jury to find such accused person guilty of an assault with intent to do bodily harm within the provisions of the statute.4

So, under an indictment for murder, the defendant may be convicted of manslaughter, or he may be convicted of simple larceny under an indictment for burglary or robbery,5 or on an indictment for rape, of an assault with intent to commit a rape.

Id., 2 Hawk., ch. 47, §§ 4, 5, 11, 12; 19 Pick., 479; 22 Pick., 1-7; 21 Pick., 523; Peo. v. Snyder, 2 Park. Cr. R., 23.

6

1 Lewin, 16, 15 Mass., 187; 7 Conn., 54. But see 12 Pick., 507, where the correctness of the above doctrine is doubted; vide, also, for other cases illustrating the rule: 1 Hale, 534; 2 East. P. C., 736-784; 2 Leach, 671; Russ. & Ry. C. C., 416; 3 Hale, 184; 2 Hale, 502; Fost., 329; 2 Hawk., ch. 47, § 6.

But upon the trial of an indictment for murder the accused cannot be convicted of a simple assault and battery, though he may be of manslaughter; manslaughter and murder are different degrees of the offence of homicide, and hence a conviction for manslaughter, upon an indictment for murder, is authorized by the statute, but assault and battery is not any degree of homicide.1

Though an indictment for petit larceny charges it as a second offence, and the commission of the prior larceny is not proved, yet the prisoner may be convicted of larceny as a first offence.2 Where an indictment for rape charges one as principal in the first degree, and the others as present, aiding and assisting, they may all be convicted of an assault if the rape be not proved.3

A verdict by which the prisoner is found "guilty of an assault and battery with intent to kill," without reference to a sufficient indictment and without specifying the means by which the assault and battery were committed, will authorize no sentence for any offence beyond a simple assault and battery.4

When it turns out, upon an indictment for rape, that the woman was induced by fraud to consent, supposing the prisoner to be her husband, the prisoner may be convicted of an assault; for if resistance be prevented by fraud that is sufficient.5

Under an indictment for a rape, where the facts proved are not sufficient to establish the commission of that offence, the prisoner may be convicted of an assault.6

Where the defendant is tried in a court of sessions on an indictment for rape and an assault, with intent, &c., and the jury convict of an assault and battery merely, judgment cannot be rendered, since the sessions have not jurisdiction of the offence of 'rape.7

So, also, of forgery charged as after a conviction for a previous felony, it is competent for the jury to convict of forgery, without noticing the previous conviction.8

1 Burns v. Peo. 1 Park., 182.

Palmer v. The Peo., 5 Hill, 427.

Reg. v. Finchard, 1 Russ. on Cr., 692.

♦ Peo. v. Davis, 4 Park., 61; O'Leary v.

Peo., Id., 187.

Reg. v. Williams, 8 C. & P., 286; Reg. v. Saunders, 8 C. & P., 265.

2 R. S., 702, § 27; 15 Mass. R., 187.

Peo. v. Abbott, 19 Wend., 192.

• Vincent v. Peo., 15 Abb. Pr., 234.

§ 124. VERDICT SHALL NOT BE FOR AN ATTEMPT WHEN OFFENCE IS

PERPETRATED.

No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offence, when it shall appear that the crime intended, or the offence attempted was not perpetrated by such person at the time of such assault, or in pursuance of such attempt.1

In an indictment containing a count for an assault with intent to commit a rape, and a count for a common assault, if the prisoner be acquitted on the count for an assault with intent to commit a rape, on the ground that the prosecutrix consented, he cannot be convicted on the count for a common assault.2

Where there is no reason to expect that the facts and circumstances of the case when given in evidenee, will establish that the crime of rape has been completed, the proper course will be to prefer a complaint for assault with intent to ravish, which offence is of an aggravated nature, and has in many cases been visited with exemplary punishment. But this proceeding should not be adopted where there is any probability that the higher offence will be poved, as where upon an indictment for an assault with intent to commit a rape, the prosecutrix proved a rape actually committed, the judge directed an acquittal upon the ground that the lesser offence was merged in the higher.3

§ 125. SPECIAL VERDICT.

4

As before stated, the jury may render a special verdict. It is also further provided by statute that no jury shall in any case be compelled to give a general verdict, so that they find a special verdict, showing the facts respecting which issue is joined, and therein require the judgment of the court on such facts.5

A special yerdict, as before stated, is rendered when the jury find certain facts to exist, and leave the court to determine whether or not, according to the law which controls those facts, the prisoner is guilty."

To authorize the court to pronounce judgment on a special verdict, the legal affirmative or negative conclusion must follow as a necessary consequence from the facts stated.1

It is not necessary that the jury, after stating the facts, should draw any legal conclusion. If they do so, the court will reject the conclusion as superfluous, and pronounce such judgment as they think warranted by the facts.2

No particular form of words is necessary to be followed with technical exactness in drawing up a special verdict. It must positively state the facts themselves, and not merely the evidence adduced to prove them.3

Where the fact is of a transitory nature, the jury may find it to have occurred in another place within the county than that named in the proceedings.*

The court cannot supply a defect in the statement made by the jury, in the record by any intendment or implication whatever; 5 and all the circumstances constituting the offence must be found, in order to enable the court to give judgment."

It is said that, although a special verdict cannot be amended in matters of fact, yet the court may amend a mere error in form, even in capital cases, when there are any notes or minutes by which it can be amended; and where the alteration is merely to fulfill the evident intention of the jury, the court will in all cases allow it to be amended; but that it will not amend by supplying facts incompatible with those found by the jury."

§ 126. POLLING THE JURY.

The object of polling the jury is to ascertain whether the verdict rendered by the foreman in behalf of himself and the rest, is really concurred in by the others.

Lord HALE says, if the jury say they are agreed, the court may examine them by poll.9

'2 McCord, 129.

' 2 Swan, 399; 1 Chit. Cr. L., 643.

1 Chit. Cr. L., 644.

6 2 East. P. C., 708-784.

2 Stra., 1015.

1 Chit. Cr. L., 645.

1 Chit. Cr. L., 645; 2 McCord, 129.

State v. Bogain, 12 La. An., 264; State v. John, 8 Ire., 330.

2 Hale's P. C., 299; Watts v. Brains, Cro. Eliz., "78.

C. P.-25.