
    The People of the State of New York, Resp’ts, v. Cynthia McDonald, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Criminal law—Defendant mat be convicted of ant crime necessarily INCLUDED IN THAT CHARGED IN THE INDICTMENT.
    Sections 444 and 445 of the Code of Criminal Procedure provide 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 of any degree inferior thereto, or of an attempt to commit the crime, and that 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. Meld, that where the indictment charged the defendant with manslaughter in causing the death of a child by such negligence as constituted a misdemeanor, the jury might find her guilty of a misdemeanor.
    2. Same—Omission to render verdict on certain counts is equivalent to acquittal on those counts.
    The omission of a jury to render a verdict on certain counts of an indictment is not such 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, and a bar to further prosecution.
    
      Appeal from the judgment of the court of sessions of Monroe county, entered upon a verdict convicting the defendant of misdemeanor, by which she was sentenced to be imprisoned in the Monroe county penitentiary for the period of one year, and to pay a fine of $100,
    
      George D. Forsyth, for app’lt; George A. Benton, district, attorney, for the people.
   Barker, P. J.

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 produced cn the trial is contained in 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 hay ■ ing the charge of the infant child named, did unlawfully and feloniously suffer and permit the health of the child, by wilfully 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 averments are 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 Tule 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. 0., 513.

The provisions of the Revised Statutes (2 R. S., p. 788, .sec. 27, 3d ed.) 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 of 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, sc if the people fail to prove all the facts necessary to sustain the charge of manslaughter, and did prove so much of the facts alleged as was necessary to establish the misdemeanor, then she was properly convicted by the yules of the common law as wrell as by the provisions found in section 445 of the Penal Code. Under this rule an accused party cannot be súrprised upon this trial, for the people cannot prove any fact not alleged, nor can he be convicted of any crime that the facts proved do mot 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 hill 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 prosecdtion. The People v. Dowling, 84 N Y, 478; The 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.

Haight, Bradley and Dwight, JJ., concur.  