
    Palmer vs. The People.
    Though an indictment for petit larceny describe it as a second offence, alleging a previous conviction of forgery, the prisoner may nevertheless be convicted of the larceny as a first offence.
    
    On error from the general sessions of Kings county, where Palmer was indicted under 2 R. 8. 699, § 8, for petit larceny as a second offence, the first offence laid being forgery in the third degree. On the trial, the prosecutor failed to prove that the defendant had been convicted of the forgery charged; and the court instructed the jury that, notwithstanding the frame of the indictment, they might find the defendant guilty of petit larceny simply. Exception. Verdict that the defendant was guilty of the petit larceny, though not as a second offence. After judgment, the defendant brought error.
    
      N. Hill, Jun., for the plaintiff in error,
    insisted that the averments in respect to the forgery could not be disregarded as surplusage. They are descriptive of the second offence, being introduced to characterize and distinguish it from that species of larceny which is punishable as a mere misdemeanor; (The People v. Youngs, 1 Cain. Rep. 37;) and the rule is that such allegations are to be proved, or the indictment must fail. (1 Stark. Ev. 332, 5th Am. ed.; Greenl. Ev. 73.) The statute as to conviéting of an inferior degree of the offence charged, does not apply. (2 R. S. 702, § 27.) Nor does the common law doctrine, in respect to divisible averments. (Arch. Cr. Pl. 106; Rosc. Cr. Ev. 74.)
    
      N. B. Morse, (district attorney,) contra.
    
   The Court

said the conviction was sustainable within the rule laid down in The People v. Jackson, (3 Hill, 92.)

Judgment affirmed.  