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guilty of the one charged. Suppose, for example, the indictment is for a conspiracy to commit an offence, and the proof establishes, that the conspiracy was carried into effect by the commission of it; or for manslaughter, and murder is. shown; or for larceny, and it turns out that the larceny was perpetrated in the course of a burglary; or for malicious mischief, and the facts appearing would equally sustain a charge of larceny; or for inflicting a battery on one man, when in truth the blow took effect on two; or for the nonrepair of one street, when the neglect covered several streets;7 or for being accessory to one person, while more persons also were guilty of the principal offence, in these and the like cases, the prisoner may be convicted of what is charged against him, if, like what is not charged, it is sustained by the evidence. To this rule there are, in some localities, one or two exceptions, to be discussed further on in this chapter.9

6

§ 537. It is sometimes a nice matter to determine into what parts a criminal transaction may be separated, and where the lines of division run. Something, under this head, will be attempted in respect of the specific offences, in our second volume; but the decisions are not sufficiently

1 Reg.'v. Neale, 1 Car. & K. 591, 1 Den. C. C. 37; Reg. v. Howell, 9 Car. & P. 437, 454; Lohman v. People, 1 Comst. 379; The State v. Sonnerkalb, 2 Nott & McCord, 280; Thayer v. Boyle, 30 Maine, 475; Reg. v. White, 20 Eng. L. & Eq. 585; The State v. Keen, 34 Maine, 500; Rex v. Davis, 1 Car. & P. 306; The State v. Coppenburg, 2 Strob. 273; Rex v. Wilkes, 1 Leach, 4th ed. 103, 2 East P. C. 746; Rex v. Cramp, Russ. & Ry. 327; Reg. v. Pringle, 9 Car. & P. 408, 2 Moody, 127; The State v. Parmelee, 9 Conn. 259,

? The State v. Murphy, 6 Ala. 765; People v. Mather, 4 Wend. 229, 265; The State v. Murray, 15 Maine, 100; post, § 550.

• Commonwealth v. McPike, 3 Cush. 181.

Wyatt v. The State, 1 Blackf. 257.

The State v. Leavitt, 32 Maine, 183.

7

Stoops v. Commonwealth, 7 S. & R. 491. And see ante, § 468.

• Post, § 543 et seq.

numerous to enable us to discuss the matter even there, as respects every one of the crimes. In the meanwhile, a suggestion or two, and a reference to authorities, must suffice. One suggestion is, that, in all cases other than those of felony absorbing misdemeanor, to be mentioned further on in this chapter,1 the transaction is divisible at whatever place the law can so cut it, that the part will fill its definition of any particular crime. In the next place, when the division has been made, and the prisoner has been prosecuted for one offence, there may be an embarrassment in prosecuting him for a second offence, properly carved out of his act,—a point to be discussed in a chapter further on.2 Another suggestion is, that the prosecuting power ought practically to be cautious how it carves; because not only may a mistake here result in a failure to convict, but may or not, according to the circumstances, enable the prisoner, after trial, to plead the prior proceedings in bar of subsequent ones. These points are not necessary to be here discussed; but a reference to the cases will be convenient.3

1 Post, § 551.

2 Post, § 649 et seq.

The State v. Moultrieville, Rice, 158; The State v. Benham, 7 Conn. 414; The State v. Fife, 1 Bailey, 1; The State v. Fayetteville, 2 Murph. 371; The State v. Johnson, 12 Ala. 840; Rex v. Champneys, 2 Moody & R. 26, 2 Lewin, 52; Hinkle v. Commonwealth, 4 Dana, 518; The State v. Damon, 2 Tyler, 387; Holcomb v. Cornish, 8 Conn. 375; Frasier v. The State, 6 Misso. 195; People v. Ward, 15 Wend. 231; The State v. Cooper, 1 Green, N. J. 361; The State v. Plunkett, 3 Harrison, 5; The State v. Coombs, 32 Maine, 529; The State v. Maher, 35 Maine, 225; Smith v. Commonwealth, 7 Grat. 593; Rex v. O'Brian, 7 Mod. 378; Rex v. Reynell, 6 East, 315; The State v. Spurgin, 1 McCord, 252; Shaw v. The State, 18 Ala. 547. As to larcenies, see Reg. v. Brettel, Car. & M. 609; Rex v. Jones, 4 Car. & P. 217; The State v. Williams, 10 Humph. 101; Lorton v. The State, 7 Misso. 55; Reg. v. Bleasdale, 2 Car. & K. 765; The State v. Nelson, 29 Maine, 329; The State v. Thurston, 2 McMullan, 382; Rex v. Birdseye, 4 Car.& P. 386. As to burglary, and the like, see Commonwealth v. Hope, 22 Pick. 1 ; Josslyn v. Commonwealth, 6 Met. 236; The State v. Squires, 11 N. H. 37; Commonwealth v. Brown, 3 Rawle, 207; The State v. Brady, 14 Vt. 353; Jones v. The State, 11 N. H. 269; Stoops v. Commonwealth, 7 S. & R. 491;

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§ 538. Where offences are included within one another, as shown in the figures at § 530 and 531, a party indicted for any one of them may be convicted of any lower one; unless, what does not often happen, the allegation is such in form as does not properly charge the lower. Thus a person indicted for murder may be found guilty of manslaughter; 2 for an assault with intent to commit murder, or manslaughter, or mayhem, or a carnal ravishment, may be convicted of either a simple assault, or a compound assault of a less degree than that alleged; indicted for adultery, may receive judgment for fornication; indicted for rape on the person of his daughter, convicted of incest; indicted for riot and assault, convicted of assault only; indicted for larceny

Rex v. Comer, 1 Leach, 4th ed. 36; Rex v. Vandercomb, 2 East P. C. 519," 2 Leach, 4th ed. 708; Commonwealth v. Tuck, 20 Pick. 356; The State v. Moore, 12 N, H. 42; Commonwealth v. Dove, 2 Va. Cas. 26.

Swinney v. The State, 8 Sm. & M. 576; Reg. v. Reid, 1 Eng. L. & Eq. 595, 599, 15 Jur. 181; The State v. Nichols, 8 Conn. 496; Durham v. The State, 1 Blackf. 33; Wilson v. Commonwealth, 12 B. Monr. 2; Reg. v. Wynn, 1 Den. C. C. 365, 2 Car. & K. 859; Rex v. Compton, 3 Car. & P. 418; Commonwealth v. Harney, 10 Met. 422; and the other cases cited to this and the next two sections. And see Smitherman v. The State, 27 Ala. 23.

* Lisle's case, J. Kel. 89-108; The State v. Fleming, 2 Strob. 464; Reynolds v. The State, 1 Kelly, 222; King v. The State, 5 How. Missis. 730; Watson v. The State, 5 Misso. 497; Plummer v. The State, 6 Misso. 231; The State v. Gaffney, Rice, 431; Commonwealth v. Gable, 7 S. & R. 423 ; The State v. Arden, 1 Bay, 487.

3 Gardenhier v. The State, 6 Texas, 348; The State v. Stedman, 7 Port. 495; The State v. Coy, 2 Aikens, 181; Stewart v. The State, 5 Ohio, 241 ; Clark . The State, 12 Ga. 350.

McBride v. The State, 2 Eng. 374.

5 Commonwealth v. Fischblatt, 4 Met. 354; Rex v. Dawson, 3 Stark. 62. Respublica v. Roberts, 2 Dall. 124, 1 Yeates, 6; The State v. Cowell, 4 Ired. 231. And see The State v. Pearce, 2 Blackf. 318; The State v. Cox, 2 Taylor, 165.

Commonwealth v. Goodhue, 2 Met. 193.

Rex v. Hemings, 2 Show. 93; The State v. Townsend, 2 Harring. Del. 543; Rex v. Heaps, 2 Salk. 593. It would appear, however, that an indictment for riot may be so framed, as, on the principle stated post, § 542, not to include an assault. Reg. v. Ellis, Holt, 636. And see The State v. Allen,

as a second offence, convicted of the larceny as a first of fence.1

$539. Likewise in burglary and the various statutory breakings into shops and dwelling-houses, if the allegation against the prisoner sets forth a larceny within the building, as a part of the larger offence,2 the conviction may be for the larceny alone. In those States where murder is by statute divided into two degrees, a defendant, on a general indictment, or an indictment for murder in the first degree, may be convicted of the offence in either degree; the statutes making it necessary for the verdict to state which degree.4

§ 539 a. The proposition is perhaps best stated as follows: Whatever the offence alleged, any other offence may be shown to have been committed, and the indictment will be sufficient, provided the offence proved is included within the broader words of the allegation.5

A

4 Hawks, 356; Commonwealth v. Perdue, 2 Va. Cas. 227; Childs v. The State, 15 Ark. 204.

1 Palmer v. People, 5 Hill, N. Y. 427.

Stoops v. Commonwealth, 7 S. & R. 491; The State v. Squires, 11 N. H. 37; Crowley v. Commonwealth, 11 Met. 575; Kite v. Commonwealth, 11 Met. 581; Jones v. The State, 11 N. H. 269; Commonwealth v. Hope, 22 Pick. 1; Josslyn v. Commonwealth, 6 Met. 236; Commonwealth v. Tuck, 20 Pick. 356; Berry v. The State, 10 Ga. 511; The State v. Moore, 12 N. H. 42; Rex v. Comer, 1 Leach, 4th ed. 36; Rex v. Vandercomb, 2 East P. C. 519, 2 Leach, 4th ed. 708; Commonwealth v. Brown, 3 Rawle, 207.

The State v. Brady, 14 Vt. 353; Anonymous, 31 Maine, 592; The State v. Grisham, 1 Hayw. 12; Rex v. Withal, 1 Leach, 4th ed. 88, 2 East P. C. 515, 517; Commonwealth v. Hope, 22 Pick. 1; The State v. Cocker, 3 Harring. Del. 554; Reg. v. Reid, 1 Eng. L. & Eq. 595, 599, 15 Jur. 181. See Reg. v. Clarke, 1 Car. & K. 421.

1 McGee v. The State, 8 Misso. 495; The State v. Dowd, 19 Conn. 388; People v. Doe, 1 Mich. 451; McPherson v. The State, 9 Yerg. 279; Thomas v. The State, 5 How. Missis. 20, 32; Johnson v. The State, 17 Ala. 618. And see People v. White, 22 Wend. 167; The State v. Town, Wright, 75; The State v. Williams, 3 Fost. N. H. 321.

"For exceptions to the rule see post, § 543 et seq.

§ 540. The doctrine is not confined to these cases of crime within crime, but is general, that the defendant may receive judgment on so much of the allegation proved as constitutes an offence, whether in the same degree as the entire matter charged or not. Thus one charged with printing and publishing a libel may be acquitted of the printing, and convicted of the publishing. One charged with a larceny of property of more than one hundred dollars in value may be found guilty of the larceny in a less value; charged with having in pos'session, with intent to utter, more than ten pieces of counterfeit coin, may be found guilty of having less than ten.3 So on an indictment for grand larceny, that is, a larceny in which the property stolen is alleged to be worth more than twelve. pence, the conviction may be for petit larceny.5. And we have already seen, that, when a statute contains several things in the alternative, it is common to indiet for the whole jointly; while the proof need cover only what simply constitutes a crime within the allegation.

ནཱཝ་ཨ། །

§ 541. In like manner, where two or more persons are indicted together for one offence, a part may be convicted and the rest acquitted; or some may be found guilty of the

8

1 Rex v. Newton, 2 Lev. 111, and the other cases cited to this section; also ante, § 148.

State v. Murphy, 8 Blackf. 498; 2 Hawk.

The State v. Bennet, 3 Brev. 515, 2 Const. 693; The State v. Wood, 1 Const. N. s. 29; The P. C. Curw. Ed. p. 620, § 6.

116.

And see The State v. Arlin, 7 Fost. N. H.

8

Stevens v. Commonwealth, 6 Met. 241.

Reg. v. Dovey, 2 Den. C. C. 86, 2 Eng. L. & Eq. 532; The State v. Allen, 4 Hawks, 356; Bloombuff v. The State, 8 Blackf. 205; Ward v. The State, 22 Ala. 16. And see Commonwealth v. Perdue, 2 Va. Cas. 227; The State v. Allison, 3 Yerg. 428.