
    The People vs. Jackson.
    Under an indictment for producing an abortion of a quick child, which, by the revised statutes, is a felony, the prisoner may be convicted, though it turn out that the child was not quick, and the offence therefore a mere misdemeanor. The provision in 2 R. S. 702, § 27, has not affected the common.law rule respect.
    ing the right to convict of an inferior offence, on an indictment for a superior one. The English doctrine that, under an indictment for a felony, the prisoner cannot be convicted of a misdemeanor, proceeds upon peculiar reasons which have no foundation in the criminal law of this state.
    Under an indictment for murder, the prisoner may be convicted of manslaughter. Per Cowen, J.
    So, the prisoner may be convicted of simple larceny, under an indictment for burglary or robbery. Per CowBN, J.
    On certiorari from the general sessions of the city and county of Hew-York. Jackson, the prisoner, was convicted in the court below of producing an abortion. There were two counts in the indictment) both charging manslaughter in the second degree within 2 R. S. 550, 1, § 9, 2d ed. The first count was, that the prisoner, on, See. at, &c., u in and upon one S. S. &c., she the said S. S. then and there, &c., being pregnant with a quick child, feloniously and wilfully did make an assault, and that the said C. H. J. (the prisoner) on, Sec., feloniously and wilfully did use and employ in and upon the body and womb of the said S. S., the mother of the said quick child, certain instruments, to wit, one piece of wire, &c., with the intent thereby then and there feloniously and wilfully to destroy the said quick child, the same not being necessary to preserve the life of the said S. S., the mother of the said child, and not having been advised by two physicians to be necessary for such purpose; by means whereof the death of the said quick child was thereby produced.” The second count charged a similar offence, in substantially the same words, to have been committed with some instrument to the jurors, &c. unknown.
    The proof being doubtful as to the manslaughter, the court charged the.jury that, if they found an abortion was produced by the prisoner, when not necessary to preserve life, &c. though the child was not quick, and the offence a mere misdemeanor, the case would be within the indictment. ( Vid. 2 R. S. 578, 9, 2d ed. § 21.) The prisoner’s counsel excepted to the charge.
    Verdict, not guilty of the manslaughter; but guilty of the misdemeanor.
    
      C. Nagle,
    
    for the prisoner, insisted that, under this indictment, which was for a felony, the prisoner could not be convicted of a misdemeanor. He said the 2 R. S. 586, 2d ed. § 27, went no farther than to authorize a conviction of some inferior degree of manslaughter, or an attempt to commit the offence charged. Manslaughter is a felony. (Id. 587, § 30.)
    
      J. R. Whiting, (district attorney) contra.
    
   Per Ceriam.

The 2 R. S. 586, 2d ed. § 27, is to some extent a declaration of the common law. In some respects it may go farther; in others it probably comes short. It might not sustain this conviction—but the common law clearly does, and there is nothing in the statute to interfere with the common law rule. No objection on the ground of variance can be sustained. The case is, in principle, like a conviction of manslaughter under an indictment for murder ; or of simple larceny, under an indictment for burglary or robbery. The indictment charges facts enough, and more than enough, to make out a misdemeanor; and the prosecution is never in such case holden to fail, merely because all the alleged circumstances are not proved, if such as are proved make out a crime, though of an inferior degree. This has been uniformly held by the English courts where the crime proved is of the same generic character with that charged; for instance, where the proof is of an inferior felony, and the indictment charges a higher. An exception was at one time made by those courts if the inferior crime was of a lower class, as a misdemeanor ; but that went on the ground that the prisoner lost some advantage—e. g. the privilege of being defended on the whole matter by counsel. No such reason is to be found in our criminal system. The subject was examined by this court in The People v. White, (22 Wend. 175 to 177,) where several references to the English books may be found. The court below were right; and the motion for a new trial is denied.

Rule accordingly. 
      
      
         See The People v. Quoteau, M. S., stated in Cowen & Hill’s Notes to Phil. Ev. 498, 9.
     
      
       See Cowen § Hill’s Notes to Phil. Ev. 497, 957, 8, and the cases there cited. Also Commonwealth v. Griffin (21 Pick. 523, 525 ;) The State v. Standifer, (5 Porter’s Rep. 523, 531 ;) The State v. Stedman, (7 id. 495 ;) Regina v. Nichols, (9 Carr. Payne, 270 ;) Regina v. Griffiths, (8 id. 374 ;) Arch. Cr. Pl. 106, et seq. ; Rosc. Cr. Ev. 74.
     