
    SUPREME COURT.
    Daniel O’Leary, plaintiff in error, agt. The People, defendants in error.
    In criminal cases, the practice in the fourth district is, to allow the bringing up of any errors that affect the party, whether in, or dehors the record, or otherwise. And the court will pass upon all questions brought before them by either a writ of error, or certiorari, or both.
    The principal offence charged in the indictment in this case was assault and battery, with a deadly weapon, commonly called a cleaver, with intent to Mil. On the trial in the court of sessions, the jury found the defendant “ guilty of assault and battery, with intent to Mil.” Whereupon the defendant was sentenced to the state prison for two years.
    On writ of error and certiorari, the supreme court held, that the verdict of the jury was a special or partial verdict—a verdict of guilty of-a part of the charge contained in the indictment, and silent as to the residue.
    An assault and battery with intent to Mil is not a felony by our statutes, nor at common law. It is only felony when committed with some deadly weapon, or with some other means or force (not charged in this indictment) likely to produce death.
    Therefore, the jury not having found a general verdict of guilty, nor a special verdict finding all the facts and circumstances constituting the offence charged, the judgment of the court of sessions was reversed.
    
    
      Plattsburgh General Term,
    May, 1859.
    The plaintiff in error, Daniel O’Leary, was indicted at the Saratoga oyer and terminer, in January, 1858, charged with having, on the 22d day of September, 1857, at the village of Waterford, feloniously made an assault upon one Margaret Collins, with a certain deadly weapon, commonly called a cleaver ; that said O’Leary did then and there feloniously beat, strike, cut and wound, with intent, her, the said Margaret Col* lins, then and there feloniously and wilfully to MU.
    There are three counts in the indictment. The first and second counts are in all respects similar, except that it is charged in the first, that he held the cleaver in his right hand, and the second charges that he held the cleaver in both hands at the time of making the assault.
    
      The third count charges the assault to have been made with intent to maim.
    O’Leary was arraigned and pleaded not guilty.
    
    The issue thus joined came on to be tried in June, 1858, at the Saratoga general sessions, where it had been sent by order of the oyer and terminer for trial.
    The jury found the prisoner guilty of assault and battery, with intent to hill.
    
    The prisoner was sentenced to imprisonment in the state prison in the county of Clinton, at hard labor, for the term of two years.
    No bill of exceptions was made or filed.
    The prisoner sued out a writ of error. A certiorari was also issued, and a return to each was made by the clerk,
    I. C. ORMSBY, for plaintiff in error.
    
    I. The judgment is erroneous.
    It is a familiar principle that all the circumstances essential to sustaining an indictment must be expressly found by the jury. (1 Chitty's Crim. Law, 644; Commonwealth agt. Call, 21 Pick. 513; Commonwealth agt. Fischblatt, 4 Metcalf, 355; Fenwick agt. Logan, 1 Missouri R. 401.)
    Under this indictment, in order to convict the prisoner of the felony charged, four distinct, material substantive facts were necessary to be found; to wit: 1st. An assault. 2d. A battery. 3d. An intent to kill, and 4th. By means of a deadly weapon. A general verdict of guilty would have embraced such a finding. Not so with a qualified verdict, for the very object of a departure from the usual form is presumed to be, for the purpose of declaring the prisoner guilty of certain facts only. (Commonwealth agt. Call, before cited.)
    
    EE. The only complete and substantive crime found by the jury was that of assault and battery, and the intent found is merely matter in aggravation. (Commonwealth agt. Fischblatt, 4 Met. 356.)
    It has been expressly held that an assault and battery with intent to kill, unless it be with some deadly weapon, or by some other means likely to produce death, is not a felony. (Barb. Cr. Law, 80; Com. agt. Barlow, 4 Mass. 439 ; 4 Blackstone, 207 [note k], Christian’s ed.)
    
    Ill: The English doctrine, that, under an indictment for a felony, the prisoner cannot be convicted of a misdemeanor, does not prevail here. Accordingly, under an indictment for murder, the prisoner may be convicted of manslaughter; under an indictment for burglary or robbery, the prisoner may be convicted of simple larceny. (The People agt. Jackson, 3 Hill, 92, and cases there cited.)
    
    And on an indictment founded on a statute, the defendant may be found guilty at common law.- (1 Chitty Cr. Law, 638.)
    John O. Mott, district attorney, for defendants in error.
    
    I. The only matters properly in the- return of the clerk in this case, to the writ of error, are, a transcript of the indictment and the judgment of the court; all others should be stricken out. The court of review is confined to such errors as appear upon the face of the. indictment or in the bill of exceptions. (2 R. S. 4th ed. 923, § 22, 924, § 25; The People agt. McCann, 3 Parker Cr. R. 272.)
    1. There being no bill of exceptions in the return, the only errors of which the defendant can take advantage are such as appear upon the face of the indictment and the judgment. (2 R. S. 4th ed. 924, § 25.)
    2. The certiorari and return thereto should be disregarded by this court. They form no part of the records, and are not brought up by the writ of error. (The People agt. McCann, 3 Parker Cr. R. 272.)
    H. The indictment is good on its face, under 2 B. S. 4th ed. 851, § 38, and it is equally valid under 2 B. S. 4th ed. 852, §41.
    The judgment is such an one as a conviction under either section of the statute would authorize. (The People agt. Allen, 5 Denio, 76 ; Biggs agt. The People, 8 Barb. 547.)
    III. The verdict in this case was not a special verdict. In order to constitute a good special verdict, the j ury must find all the facts constituting the crime, and bring it within 'the jurisdiction of the court. (1 Chiiiy’s Crim. Law, 5th Am. ed. 636 and 642; Commonwealth agt. Call, 21 Pick. 509 ; Dyer agt. Commonwealth, 23 Pick. 402 ; Commonwealth agt. Fischblatt, 4 Metcalf, 854; McGuffie agt. The State of Georgia, 17 Georgia, 497.)
    IV. The verdict in this case is a general verdict under § 38, 2 B. S. 1th ed. 851, and also under § 41, 2 B. S. 1th ed. 852, and the sentence of the prisoner to the state prison, for a term not exceeding five years, is sustained by the verdict. (Commonwealth agt. Fischblatt, 1 Metcalfs R. 354; The People agt. Shaw, 1 Parker Cr. R. 327; The People agt. Jackson, 3 Hill R. 92; The People agt. White, 22 Wend. 175; McGuffie agt. The State, 17 Georgia, 497; Girts agt. The Commonwealth, 22 Pennsylvania R. 351.)
    1. Under an indictment for murder, the prisoner may be convicted of manslaughter. (People agt. Jackson, 3 Hill, 92.)
    2. So, the prisoner may be convicted of simple larceny, under an indictment for burglary or robbery. (People agt. Jackson, 3 Hill, 92; People agt. White, 22 Wend. 175.)
    3. If the court should be of opinion that we are not allowed to refer to the indictment for the means or weapon with which the assault and battery was committed, then we say the verdict is good under the 41st section, as by that section no instrument or means are required, except the act and intent.
    V. If the court is of opinion that the verdict is not one.of guilty, then the prisoner must be again put vn his trial. (Commonwealth agt. Call, 21 Pick. 509.)
   Potter, Justice.

The defendant was indicted for two stat ute offences. The 1st and 2d counts were for the same offence, only varied in statement, for an assault and battery with a deadly weapon, with intent to kill one Margaret Collins. The 3d count was for an assault and battery upon the said Margaret Collins, with intent to maim her.

A trial was had before the Saratoga sessions. The jury rendered their verdict, “ that they find the prisoner guilty of the crime of" assault and battery, with intent to kill.” The judgment of the court upon this verdict was a sentence of the prisoner (the defendant) to imprisonment in the state prison for two years. So much of the case was brought up by writ of error. A certiorari was also issued in the case, upon which the clerk returns the verdict in form, as rendered by the jury, and that the exact words and form of the verdict of the jury were as above given, and that was the only verdict rendered against the defendant in said court. Thus we have before us, by writ of error and certiorari, all that the defendant desires to have reviewed. The attorney for the people objects to so much of the case as is brought up by certiorari, and moved to have it struck out of the case.

I think the practice in this district justifies the bringing up of any errors that affect the party, whether in or dehors the record or otherwise, and that we should, therefore, pass upon all questions brought before us, by either the writ of error or certiorari, or both.

The verdict of the jury was a special verdict, and did not find the defendant guilty of either of the statute offences for which he was indicted.

The offence defined in the 38th section (3 Rev. Stat. 944, 5th ed.) is as follows: Every person who shall be convicted of shooting at another, or attempting to discharge any kind of arms or air gun at another, or of any assault and battery u/pon another, by means of any deadly weapon, or by such other means or force as was likely to produce death; with the intent to kill, maim, ravish or rob such other person, &c., shall be punished, &c.”

The offences that are described in the 41st section are a class of offences, the punishment of which is not before prescribed. As the punishment of the offence described in the indictment is prescribed in the above 38th section, it will be seen that the 41st section has nothing to do with this case.

The indictment in this case is a good indictment in form for the offence it describes, and the offence set forth comes within the 38th section of this statute. The jury, however, have not found the defendant guilty of that which constitutes the main feature of the crime, to wit, the commission of the act by means of any deadly weapon.

Had the indictment charged all the means by which the offence might have been committed, or that it was committed by such other means or force as was likely to produce death with like intent, which means, or which force, was to the grand jury unknown—or, had the petit jury found the defendant guilty of the offence for which he was indicted, or generally guilty, so as to meet the charge—the com’t would see that the verdict was broad enough to meet the charge. But, upon this writ of error, we must take the verdict as it is rendered. It is entirely probable that the jury intended to find him guilty under one of the first two counts, instead of the third; and that their verdict was intended so to express their finding. This verdict might have been definite at the time by their explanation; but it was not, and we cannot now speculate upon it. The form of the verdict must be such that all the circumstances constituting the offence must be found, in order to enable the court to give judgment; for the court cannot supply a deficit in the statement made by the jury on the record, by any intendment or implication whatsoever. (1 Chit. Cr. L. 643 ; 4 Met. 354; 21 Pick. 509.)

An assault and battery with intent to kill is not a felony by our statutes, nor at common law. It is only felony when committed with some deadly weapon, or with some other means or force likely to produce death. (Barb. Cr. L. 80, and authorities cited.)

If we had the power, I should like to send the case back, for a new trial, but I do not think we have the power. (See Opinion of Bronson, in People agt. Taylor, 3 Denio, 97.)

Judgment reversed.

Bosekrans, Justice.

The verdict rendered in this case is not a special verdict, as it omits to find the facts upon which judgment of law is to be pronounced by the court. But it is a general verdict of guilty as to the charge of assault and battery, but not of the assault and battery with a cleaver with intent to kill. It is a partial verdict—a verdict of guilty of a part of the charge contained in the indictment, and is silent as to the residue of the charge. It may be that the jury intended by the verdict to cover the entire charge in the indictment; and, before it was rendered and the jury discharged, their attention might have been directed to the informality, by the court, and the verdict corrected. But nothing should be left to intendment or inference after the verdict is rendered. It should be either a general verdict of guilty when the whole charge is sustained, or a special verdict finding all the facts to sustain the whole charge, in order to subject the defendant to the full punishment prescribed by statute to the offence. The fact that the jury have chosen not to find a general verdict of guilty, or a special verdict setting forth all the facts necessary to constitute the entire offence charged, furnishes an argument that they do not intend to find the defendant guilty of the whole offence charged, but only of such parts of it as are included in the verdict. The offence charged in this case was an assault and battery with a cleaver (a deadly weapon), with intent to kill. The jury find the defendant guilty of the crime of assault and battery with intent to kill. They did not, however, find that the assault and battery was with a cleaver, or that the defendant intended to kill the person assaulted with a cleaver. An assault and. battery with intent to kill is not a felony, unless it is committed with a deadly weapon, or by such other means or force as is likely to produce death. (3 R. S., 5th ed., 944, sec. 38.) It is better to hold to some degree of strictness as to the manner of rendering verdicts and entering them in the minutes of the court, than to .leave the design of the jury a matter of doubt, or of inference or argument. Under this indictment the defendant could be convicted of simple assault and battery, and, as the verdict is sufficiently formal for that offence, judgment should have been rendered against the defendant on that verdict.

. The judgment of the court of sessions should be reversed. We can neither give a new judgment nor send the case back for a proper judgment. (People agt. Taylor, 3 Denio, 91; Commonwealth agt. Fischblatt, 4 Met. R. 354; .Dyer agt. Commonwealth, 28 Pick. 404 ; 2 Campb. R. 646.)  