
    People v. McDonald.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    1. Homicide—Verdict for Misdemeanor—Causing Death of Infant by Neglect.
    On an indictment under Pen. Code N. "Y. | 139, for manslaughter in the first degree, in producing the death of an infant child under the age of one year by committing the misdemeanor defined in Pen. Code, § 288, in willfully omitting, without lawful excuse, to furnish food and clothing, etc., for such child, a conviction may be had for the misdemeanor, that being an offense “ the commission of which is necessarily included in the crime charged in the indictment, ” as provided in Code Grim. Proa. N. T. § 445.
    2. Same—Verdict—On One Count Only.
    On trial of an indictment for manslaughter consisting of several counts, the omission of the jury to render a verdict on certain counts, which, as to them, is equivalent to an acquittal, is not error.
    Appeal from court of sessions, Monroe county.
    Cynthia McDonald was indicted in Monroe county for manslaughter in the first degree, under Pen. Code 2ST. Y. § 139, while committing the misdemeanor •described in Pen. Code, § 288: “A person who willfully omits, without lawful excuse, to perform a duty by law imposed upon him, to furnish food, clothing, shelter or medical attendance to a minor, is guilty of a misdemeanor. ” Prom a judgment of conviction for the misdemeanor only, defendant appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      George B. Forsyth, for appellant. George A. Benton, Dist. Atty., for the People.
   Barker, P. J.

The only question presented by the record is, could the defendant be legally convicted of a misdemeanor under the third count of the indictment? As none of the evidence prod need on the trial is contained ins the record, it is to be presumed that it was both competent and sufficient to-sustain the verdict, if a conviction for a misdemeanor was lawful and proper, upon any state of facts which the people might prove with a view of maintaining the charge of felony set forth in that count of the indictment. The-crime charged was manslaughter in the first degree, in producing the death-of an infant child under the age of one year, while the defendant was engaged in committing a misdemeanor affecting the person of the said infant child, as-such crime is defined by section 189 of the Penal Code, which provides that where a homicide is committed without a design to effect death, by a person engaged in committing or attempting to commit a misdemeanor affecting the-person or property of the person so killed, shall constitute manslaughter in the first degree. In the said count it is charged that the defendant, having-the charge of the infant child named, did unlawfully and feloniously suffer and permit the death of the child, by willfully neglecting, without lawful excuse, to supply it with proper food, clothing, and care; so as to make the-breach of duty in this respect on the part of the defendant a misdemeanor, as-that offense is defined by section 288 of the Penal Code. And these avermentsare followed by others in due and proper form, charging that, by reason of such neglect of duty on the part of the defendant, the said infant child did die. The court charged the jury that they might, if the evidence warranted; such a finding, find the defendant guilty of the crime of misdemeanor under the indictment, to which charge the defendant excepted. This exception presents the single legal proposition discussed by the learned counsel for the defendant. The indictment charges sufficient facts, and more than enough, to-show the defendant guilty of a misdemeanor; and the question is, was it necessary for the people to prove all the other facts alleged, which would have-made out a case of manslaughter, a much higher offense, subjecting the defendant to greater punishment? At the time of the adoption of the Code of Criminal Procedure the rule of the common law on this question, as it prevailed in this state, was that the prosecution never was allowed to fail because all the alleged facts and circumstances were not proved, if such as were proved made out a crime, though of an inferior degree. People v. Jackson, 3 Hill, 92. It was the uniform rule of the common law that it was sufficient, for the people to prove so much of the indictment as charged the defendant, with a substantive crime, and the other averments might be treated as surplusage. People v. White, 22 Wend. 175. On the trial of an indictment for murder, if there was a failure to prove malice, there might be a conviction for manslaughter on proving the homicide. So, on an indictment for robbery,, the prisoner might be convicted of simple larceny; and on an indictment for burglary and stealing, he might be convicted of the latter offense only. 2. East, P. C. 513. The provisions of the Revised Statutes (2 Rev. St. 3d Ed. p. 788, § 27) covered most of these rules, and they are continued and preserved in section 444 of the Code of Criminal Procedure, which provides that, upon an indictment for a crime consisting of different degrees, the jury may find the defendant guilty of the degree charged in the indictment, and guilty off any degree inferior thereto, or of an attempt to commit the crime. The next section (445) is new, and is the codification of that portion of the law which, was not embraced in the section of the Revised Statutes just quoted, and it in-, no sense narrows the common-law rule, and the language used is very broad, and comprehensive, and is as follows: “In all other cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment. ” The defendant was necessarily guilty of a misdemeanor if she was guilty of the crime of manslaughter as charged in the indictment; for the charge is that the latter crime was committed while the accused was engaged in committing a misdemeanor. So,, if the people fail to prove all the huts necessary to sustain the charge of man— slaughter, and did prove so much of the facts alleged as was necessary to establish the misdemeanor, then she was properly convicted by the rules of the common law, as well as by the provisions found in section 445, Code Grim. Proe. Under this rule, an accused party cannot be surprised upon this trial; for the people can not prove any fact ndt alleged, nor can he be convicted of any crime that the facts proved do not establish. The jury are to determine the facts established, and it is for the court to determine whether they amount to a crime. The purport and meaning of the charge, as set out in the bill of exceptions, was in conformity to the statutory rule which now prevails. The verdict is, in form and substance, that the jury find the defendant guilty of the misdemeanor set forth in the third count of the indictment. The omission of the jury to render a verdict upon the first, second, and fourth counts is not such an irregularity as should lead to a new trial; for the omission to find one way or the other is equivalent to an acquittal on those counts. Any judgment as to them is a bar to a further prosecution. People v. Dowling, 84 N. Y. 478; People v. Seeley, 3 N. Y. Crim. R. 225. We are unable to discover in the record any error or irregularity which should lead to a reversal of the judgment, and the same must be affirmed.

All concur.  