
    Saratoga Oyer and Terminer,
    July 29, 1823.
    Before Walworth, Circuit Judge, and the County Judges.
    The People vs. John Snyder.
    A person indicted for burglary in breaking and entering, &c., with intent to steal, and then and there stealing, &c., may be acquitted of the burglary and convicted on the same count for the simple larceny.
    The prisoner was indicted for burglary for breaking and entering the dwelling house of William Stratton, at Saratoga Springs, and stealing boots, shoes, &c.
    The place in which the felony was committed was a room in the dwelling house of Stratton, occupied by him as a shoe shop. There was no communication between the shop and the other part of the house, which was occupied by Stratton’s family, except by an outside door which opened into a yard surrounding the whole building. The whole building was erected together under the same roof; and some of the rooms occupied by the family were above and some on the same floor with, and some below the room occupied as a shop.
    
      S. G. Huntington, for the prisoner,
    objected that the offence was not burglary, and that as there was no count in the indictment for petit larceny, the prisoner must be acquitted.
   Walworth, Circuit Judge.

The indictment in this case includes the felonious stealing of the boots and shoes; and it is a general rule, that where an indictment for felony includes a felony of a lesser degree, the prisoner may be acquitted of the greater and convicted of the lesser offence. As in an indictment for petit treason, the prisoner may be acquitted of that offence and convicted of murder or of manslaughter. And in an indictment for burglary, where a felonious taking of the goods is also charged to constitute the crime of burglary, the prisoner may be acquitted of the breaking and entering the dwelling house in the night time, and may be convicted of the simple larceny. The court is also of opinion that the shop, as it was situated in this case, constituted a part of the dwelling house. It was under the same roof, built at the same time, occupied by the same person, was nearly surrounded by rooms occupied by his family, and the whole was separated from the street by a common enclosure .

Prisoner convicted of burglary. ’ 
      
      
         Rex vs. Gibson et al, 1 Leach, 357; Archbold, 166.
     