author: Rosekrans, J.

text:
    Montgomery Oyer and Terminer,
    September, 1862.
    Before 3. 3. Mosekrans, Justice of the Supreme Court, JR. 3. Gushney, County Judge, and the Justices of the Sessions.
    The People v. Richard Roe.
    The amendment of-the Revised Statutes (Laws 1860, chap. 211, p. 414), as to the time within which indictments must be found, applies to offenses committed before its passage, if no indictment had been then found.
    It seems, in this State, the statute of limitations, to be available in a criminal case, should be pleaded.
    Form of a plea, to an indictment, of the statute of limitations.
    The defendant was indicted at the Oyer and Terminer, in May, 1862, for false pretenses, alleged in the indictment to have been made at Canajoharie in 1850. When he was arraigned, his counsel stated to the court that, under the old practice in civil cases by statute, the defendant could interpose special pleas without an application to and leave by the court, although the old form was used, that “ leave of the court” was “ first had and obtainedbut as there was no such statute which applied to criminal cases, he desired leave to interpose the statute of limitations, with the plea of not guilty. The court granted leave; whereupon he pleaded not guilty, and also as follows: “ Second. And the said Richard Roe, in his own proper person, comes into court here, and having heard the said indictment read, by leave of the court first had and obtained, also says, that the said People of the said State ought not further to prosecute the said indictment against him, the said Richard Roe, because he says the said indictment was found and filed on the 15th day of May, 1862, and that the said indictment was not found or filed in the proper, or in any court, within three years after the commission of the offense in the said indictment specified, although during the whole time since the commission of the said offense he has been and now is an inhabitant of and usually resident within the United States. And this he, the said Richard Roe, is ready'to verify; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment above specified.”
    The district attorney demurred to the second plea, and the defendant joined, in demurrer.

      J. H. Cook(District Attorney), for the People.
    The plea does not state, nor is it claimed, that the defendant was three years a resident of this State after the commission of the offense and before the indictment was found. He also claims that the statute of 1860, which substituted residence in the United States for residence in this State, did not repeal or alter the Revised Statutes as to an offense committed before its passage.

      N. C. Moak, for the defendant.
    I. The plea is good in form and substance. Whenever a statute gives a cause of action or defense, it is sufficient, in declaring upon or pleading the statute, to follow the words of the act; and where the court, in construing a statute, has put an interpretation upon it different from the literal import of its language, it will, of course, be bound to give the same interpretation to the same words when used in a declaration or plea founded upon the statute. (Cole v. Jessup, 10 N. Y. R, 103, 104.)
    H. By the Revised Statutes, as amended by chapter 271 of the Laws of 1860 (p. 474), the indictment must be found and filed within three years after the commission of the offense, except that the time “ during which the defendant shall not have been an inhabitant of or usually resident within the United States, shall not constitute any part of the said limitation of three years.”
    III. The proper method of raising the question is by pleading the statute of limitations.
    It is true that in The State v. Roach (2 Haywood N. C. R., 552), in a case of counterfeiting, the indictment was quashed, in which the day of the month on which the offense was committed was omitted in the indictment.

      So in State v. Beckwith (1 Stewart Ala. R., 318), it was held that “ a day when a crime was committed must be laid in the indictment; and when the date is left blank, and it does not appear whether the statute of limitations bars the prosecution or not, judgment will be arrested.
    So in McLane v. The State (4 Geo. R., 335), “ where an indictment showed upon its face that it was barred by the statute of limitations, and did not show on its face anything by which the effect of the statute could be avoided, the judgment was arrested.”
    In this State, however, the rule is different, and although the indictment shows the offense to be barred by the statute, judgment will not be arrested, but the statute must be pleaded and advantage taken of it on the trial. There is considerable question whether the defendant can avail himself of its provisions on the trial unless pleaded. (People v. Van Santvoord, 9 Cow. R., 655; Commonwealth v. Hutchinson, 2 Parsons R., 453; Whart. Am. Cr. L., 4th ed., § 445.)
    ' IY. Although the offense was committed prior to the passage of the act of 1860, the indictment, being found subsequent to its enactment, is barred by the statute. In a civil case, the legislature can abridge the time within which an action must be brought, if it be not so shortened that practically no time is left the creditor within which to prosecute his claim. Here he must be left a reasonable time, because he has a vested right to his demand, which the law makers cannot entirely destroy. In criminal cases, individuals, as such, have no rights to prosecute, and whether or not the offender shall be punished, is simply a question for the government. At common law, "the legislature, by special acts, could pardon offenders even after conviction, and they still have power to say what offenses shall be the subject of prosecution. If they can enact that an offender, after conviction, shall be pardoned, why can they not provide that, unless the prosecution is commenced within a certain time, the offender shall, in" effect, be pardoned? The statute of limitations is justly called a statute of repose. It is designed to prevent prosecutions after the witnesses to a transaction may have died or forgotten the facts. The government being the only party in interest, can bar itself whenever 'and as it chooses. (Morse v. Gould, 11 N. Y. R., 288; Smith's Statutory Const., §§ 166, 167, 168, 169; Bay v. Gage, 36 Barb. R., 447; Commonwealth v. Hutchins, 2 Parsons R., 453; Whart. Am. Cr. Law, 4th ed., § 446.)
    In the People v. Hartung (22 N. Y. R., 96), it was held that “ the repeal of a law imposing a penalty, although it takes place after conviction, arrests the judgment; and where the repeal is after judgment, the judgment is to be reversed upon writ of error.”
    . . . Cook, in reply : In this ease, the defendant was in California until shortly before the indictment was found. It was found as soon as practicable after Ms return.
   Rosekrans, J.

An indictment might have been found the first term after the commission of the offense. It was not material, so far as the finding and presentment of the bill was concerned, where the defendant might be. The finding and presentment of this indictment is all the statute requires to.- , save the rights of the people. We are of opinion that the plea is good, and there must be judgment for the defendant.

       As to the methods by which the defendant can avail himself of the statute of limitations, see Whart. American Crim. Law (4th ed., §§ 436-449, 545).


source: Caselaw Access Project

author: • By the Oowrt, Emott, J.

license: Public Domain

text:
    Supreme Court. Orange General Term,
    September, 1862.

      Emott, Lott, Brown and Scrugham, Justices.
    Howard C. Conraddy, plaintiff in error, v. The People, defendants in error.
    If a felony has actually been committed, an officer, in arresting the offender, or preventing his escape, will be justified in taking his life, provided there is an absolute necessity for his doing so; it"is otherwise in case of an arrest for a misdemeanor.

      Where no process has been issued, a homicide can only be justified, even by an 'officer, by showing the actual commission of a felony, and that there was a positive necessity to take life in order to arrest or detain the felon.
    It is not a defense to an officer, in such a case, to show that he had reasonable ground to believe that the deceased had been guilty of felony, and that he had also reasonable ground to believe that the deceased would otherwise accomplish an escape.
    An exception to an expression by the court of an opinion on a question of fact, in a charge to the jury, is not available.
    The prisoner was indicted for the murder of Paul O’Neil, and pleaded not guilty. The issue came • on for trial at the Kings Oyer and Terminer, in April, 1862, before Mr. Justice Lott and the Justices of the Sessions.
    The prisoner was a police officer, and had arrested the deceased without warrant, and shot at him and killed him, at the time he was escaping from his custody.
    After the testimony had closed, and the jury had been addressed by the counsel for the respective parties, the presiding justice charged the jury as follows:
    “ I charge that the evidence in the case fairly, in the opinion of the court, warrants the conclusion — but of this the jury are to judge — that, on the morning of the 18th of March. last, the deceased, Paul O’Neil, committed an assault and battery on his wife, constituting a misdemeanor, but that the act did not amount to a felony; that the prisoner, being at the time a police officer, arrested the deceased therefor without a warrant authorizing such arrest; that the prisoner was taking him to the station house for detention; that the deceased, being under such arrest, and while on the way to the station house, escaped from the officer (the prisoner), and that the officer pursued him, and in such pursuit, and when deceased had reached a considerable distance from the officer, he was shot by a pistol-shot from a pistol of the prisoner in his hands and shot off by him; that the force of the shot was mostly spent at the time, and that such shot caused the death of O’Neil. Assuming such conclusion to be undisputed, the question arises ’ whether the prisoner was justified by the law in the commission of that act.”

      The counsel of the prisoner asked the court to charge that, “If the prisoner had reasonable ground to believe, and did believe, that the deceased had been guilty of a felony, and having arrested him therefor, if the prisoner attempted to escape from custody, and there was reasonable ground to believe that the deceased would otherwise accomplish such escape, the prisoner was justified in discharging his pistol at him to prevent such escape.”
    The court declined so to charge, but charged the reverse: that, assuming the propositions of fact aforesaid to be true, that the prisoner was not justified in discharging his pistol at him to prevent his escape, if such discharge resulted in the death of deceased.
    The counsel for the prisoner excepted to the refusal and to the charge, and also to the expression by the court of the opinion expressed by the court in said charge.
    Whereupon the jury rendered a verdict of guilty of man-, slaughter in the fourth degree, and the prisoner was sentenced to imprisonment, for one year in the penitentiary of Kings county.
    A writ óf error was sued out in behalf of the prisoner, and the record removed into this court.

      Gr. T. Jenks, for the plaintiff in error.
    I. The exception to the charge was well taken.
    The judge’s opinion, expressed in the charge, had all the . weight and directness of a direction to the jury to find.
    The parenthetical clause, “but of this the jury are to judge," does not save the charge from this objection. • It was a mere straw in the way of the positive statement of facts immediately following.
    There can be no doubt that the jury, under the charge, were deprived of the only duty which they had to perform, which was to answer the question, was the act of Paul O’Neil, for which he was arrested, a felony ?
    Again, the jury were not to judge whether, in the opinion of the court, the evidence fairly warranted the conclusion, but' they were to determine, among other things, whether any other conclusion was not warranted by the evidence in favor of the prisoner’s innocence.
    II. The exception to the refusal to charge was well taken. If the acts of the officer are ne'cessary to apprehend a person charged with-felony, he is justified, even if the acts cause the death of such person.
    If the officer might lawfully take life while endeavoring to apprehend such person, it is difficult to perceive why the officer is not equally protected in his acts done to retain the custody of such person.
    The act of fleeing is as much a resistance to the efforts of the officer as is a physical contest with him.
    The life is taken by an act designed to take or retain a prisoner, and it is not necessary that the officer should be a combatant, defending his own life or resisting an attack upon himself (Barb. Crim. Law, 38, and cases cited; 4 Black. Com., p. 179, and cases cited in foot note; 3 Greenl. Ev., § 115.)

      John Winslow (District Attorney), for the defendants in error.
    I. It was not improper nor illegal for the court to express the hypothetical opinion excepted to.
    The due and proper administration of justice may require a distinct intimation from the- court. This is especially true where juries manifest a disposition to evade the law or usurp the province of the court.
    In the case at bar, the facts were left to the jury, with the statement from the court that, if certain facts had been proved, then certain legal results must follow.
    •It has been distinctly adjudicated that such instructions are lawful and proper. (The People v. Thayer, 1 Park. Crim. R., 596, per Walworth, J.)
    In the case of Gardiner v. Pickett (19 Wend. R., 186), the court expressed an opinion to the jury as to whether a certain material fact had been proven. It was there held that merely expressing an opinion was not irregular.

      II. The court properly declined to charge that, “ if the prisoner had reasonable ground tQ believe, and did believe, that the deceased had been guilty of a felony, and having arrested him therefor, if the prisoner attempted to escape from custody, and there was reasonable ground to believe that the deceased would otherwise accomplish such escape, the prisoner was justified in discharging his pistol at him to prevent such escape.”
    The court correctly charged, “that, assuming the propositions of fact aforesaid to be true, the prisoner was not justified in discharging his pistol at him to prevent his escape, if such discharge resulted in the death of deceased.''

    The deceased, prior to the arrest, committed, if any offense at all, an assault and battery on his wife— a simple misdemeanor.
    It is well settled that an officer, having lawful custody of his prisoner, who has committed a misdemeanor only, cannot kill him to prevent an escape, not even if it is certain that the prisoner will escape unless killed.
    But where the prisoner has committed a felony, his life may be taken to prevent an escape. But even in a case of felony, it will be manslaughter to kill the prisoner unless it is absolutely necessary, and every other means at hand is insufficient.
    Blackstone says, *‘it is murder to shoot or otherwise unlawfully kill a person committing a misdemeanor, although he could not otherwise have been taken.” (4 Black. Com., 201; 1 Wheeler's Cr. Cases, 269.)
    “ But under circumstances,” it is said (1 Hale P. C., 481, cited in 2 Bishop's Cr. L., § 578), “ it may amount only to manslaughter if it appear that death was not intended.”
    But in cases of felony, if the felon fly from justice he may be killed. (Bishop, supra, § 577.)
    Where a constable endeavored to arrest a man committing a misdemeanor, but the man refused to stop on demand, and so the constable fired a pistol and hit him in the leg, the constable was convicted of felony.
    In this case the man was actually guilty of felony, it'being

      the second offense, petit larceny, but inasmuch as the fact was not known to the constable, the conviction was held proper. (1 Eng. L. & Eq. R., 566.)
    In Wharton''s American Law of Homicide, p. 49, the rule is thus stated: “ A distinction exists between misdemeanor and felony. In the former it is not lawful to kill the party accused, if he fly from the arrest, though he cannot otherwise be taken, and though there be a warrant to apprehend him; but under circumstances it may amount to manslaughter if it appear that death was not intended,” and 1 East P. C., 302, is cited.
    “ But where a felony has been committed, the felon maybe killed to prevent the escape. But if he may be taken in any case without such severity, it is at least manslaughter in him who kills him; and the jury ought to inquire whether it were done of necessity or not.” (Wharton's L. of Am. Hom., 50, 51; 1 Hale R., 481, 489, 494.)
    It will be seen from the authorities that the rule is clear and definite; that in no case where a simple misdemeanor only has been committed, must an officer take life to prevent escape. The rule is unqualified. It matters not what may have been the belief of the officer or the grounds of his belief. If he takes life, he does it at his peril. If it turns out that the party killed was guilty of misdemeanor only, the officer must answer.
    The law is tenderly regardful of the sacredness of human life, and even in cases of felony will not permit it to be sacrificed except in cases of imperious necessity.
    III. In the case at bar, the officer made the arrest without a warrant. The misdemeanor was not committed by the deceased in the view of the officer.
    By section thirty of police act (chap. 258, Sess. L. of 1860), a policeman may arrest without warrant only where the offense is committed within his view. The officer was, therefore, a trespasser ab initio.

   By the Oowrt, Emott, J.

The argument for the prisoner proceeds upon the assumption that the only question for the jury at the trial was, whether a felony had actually been committed by O’Neil, whose life the prisoner took. This is an error. The rule of the common law undoubtedly is, that if a felony has been committed, an officer will be justified even if he take the life of the offender, in arresting him or preventing his escape, provided there is an absolute necessity for his doing so, while it is not so in the case of an arrest for a misdemeanor. (3 Inst, 224; Foster Cr. L., 271; 1 Hawk. P. C., 6,1, ch. 28, § 11; 4 Bl. Com., 180 ; 1 East Cr. L., ch. 5, § 66, p. 298.) The Revised Statutes preserve the same rule. (2 R. S., 660, §§ 2, 3.) When no process has been issued, a homicide can only be justified, even by an officer, by showing the actual commission of a felony, and that there was a positive necessity to take life in order to arrest or detain the felon. When, therefore, a homicide is committed by an officer who is acting without a warrant, it is a material question whether the person killed had committed a felony, but it is equally material to determine whether it was in fact, necessary for the officer to take his life in order to effect his arrest or prevent his escape. At the trial the prisoner’s counsel requested the court to instruct the jury that if the prisoner believed, upon reasonable grounds, that the deceased had been guilty of a felony, and also upon like reasonable grounds that he would otherwise escape from custody, the killing was justifiable. So I understand the proposition of the counsel at the trial and his argument before us. Such is not the rule of law. There is but- one case in which the law justifies the taking of life upon the belief or apprehension of the,person accused himself, and that is the case of self-defense. A man may act in his own defense upon what he had reasonable ground to consider was imminent danger or urgent necessity, and he will be justified, although his apprehensions were in reality mistaken. But in taking life to prevent the commission of crime upon another, or to prevent the escape or effect the arrest of a person accused of crime, there must be the actual necessity of such homicide, and not merely reasonable grounds to suppose that it was necessary; and this must be shown to the jury.

The propositions submitted to the court on the trial seem to me to be open to the objection, in every instance, that they called upon the jury to determine whether the homicide was justifiable, by deciding whether or not the prisoner had reasonable ground to suppose, as things appéared to him, that the deceased would escape if he did not shoot him. This, as I have said, would not have been enough. The prisoner was bound to show the fact, and not merely the appearance to him, of a necessity for what he did. The jury are to judge of the actual necessity for his act, and not of the appearance to him.

If the learned judge at the trial went far enough in his charge to raise the question, which -was argued at the bar, as to when an officer would be justified in taking the life of a person whom be had in custody, and who would otherwise escape, yet we are of opinion that no error was committed of which .the prisoner can complain. The judge instructed the jury that, assuming that the prisoner had reasonable ground to believe that the deceased had been guilty of felony, and had arrested him therefor, and that the prisoner attempted to escape, and there was reasonable ground to believe that he would otherwise escape, the prisoner was not justified in discharging his pistol at the deceased, if that discharge produced his death. This was equivalent to stating that the prisoner was not justified in taking the life of the deceased to prevent his escape, upon the state of facts which has been given.

The prisoner, although an officer, was acting without a warrant. ■ Mo warrant had been issued by or to any one against the deceased. Mor had he committed any offense in the view or presence of the officer. Under such circumstances, to justify taking life, even if the jury were satisfied of the necessity of the homicide to prevent an escape, it must be shown that a felony had actually been committed. The distinction is marked between cases of misdemeanor and of felony. It is only in the latter that a homicide is justifiable by any person acting without a warrant, even when it is the only means to prevent the escape of the criminal. When no warrant is out for the offender, even an officer cannot take his life to prevent his escape upon his own belief of the commission of a felony, however reasonable ground he may have for such a belief. If he act without a warrant, he must be prepared to show the fact of the felony, in order to justify taking the life of a person whom he is endeavoring to arrest or to secure. The counsel for the prisoner excepted to the .statement by the presiding judge to the jury that, in his opinion, the evidence fairly warranted the conclusion that the deceased had been guilty of a misdemeanor, and not of a felony. The judge added, that the jury were to judge of the correctness of the conclusion. It was perfectly proper, for the judge to state his view of the facts in proceeding to lay down the law to the jury; and the qualification that the jury might judge of the correctness of his statement was probably unnecessary. It has been repeatedly held that no exception can be taken to the expression of an opinion by the court upon a question of fact. I have already said that the learned counsel for the prisoner is in error in supposing that this particular question is the only, or the most material, question of facts in the case.

It might, however, be sufficient to dispose of this exception to say, that we find no evidence upon which the jury could properly have come to the conclusion that O’Neil, the deceased, had been guilty, or could reasonably have been supposed to have been guilty, of anything more than a misdemeanor.

There was no evidence of the commission of a felony; and the judge stated the facts in the only way in which the jury could have been authorized to find them.

There was no error committed upon this trial of which the prisoner can complain; and his conviction must be affirmed.


author: By the Court, Morgan, J.

text:
    Supreme Court. Jefferson General Term,
    October, 1862.
    Mullin, Morgan and Bacon, Justices.
    The People v. John Durkin.
    A prisoner may be convicted of arson in the second degree, as described in 1 R. S., 66?, § 2, under a count charging that offense, if sustained by the evidence, although the facts proved would authorize his conviction for arson in the first degree under an indictment properly charging the higher offense.
    The words, “not being the subject of arson in the first degree,” used in the statute defining arson in the second degree (2 R. S., 666, § 2), were intended to distinguish between different degrees of the same general offense, with a view to graduate the punishment, and do not create an exception which the pleader is required to negative in charging the offense of arson in the second degree.
    The defendant was tried at the Onondaga county Oyer and Terminer, in June, 1862 — Justice Mullin presiding. The indictment contained seven counts: the first two for arson in the first degree; the third, fourth and fifth for arson in the second degree; and the sixth and seventh for arson in the third degree. On the trial, the second, fifth, sixth and seventh counts were disposed of by the court, or abandoned by the district attorney. The first count charged the defendant with setting fire to his own house in the night time, “ there, then and there being within said dwelling house some human being, to wit, Ann Welch.” -The fourth count charged the defendant with setting fire in the night time to his own house, “ which said building was then and there adjoining to a certain inhabited dwelling house there situate of one Austin Wagner, he the said Austin Wagner then and there being within the said dwelling' house of him the. said Austin Wagner, and the said dwelling house of him the said Austin Wagner then and there being endangered by such firing.” The third count was the same in substance, except it charged that the fire endangered the inhabited dwelling house of one Patrick Lynch. On the trial, evidence was given tending to prove that Ann Welch, mentioned in the first count, was an accomplice of the defendant. The court charged the jury that, if Ann Welch was an accomplice, there could be no conviction under the first count of the indictment. Ann Welch gave evidence tending to show that one John Smith lodged at the house of the defendant when it was fired. The counsel for the defendant asked the court to charge that, if Ann Welch was an accomplice, and Smith was not an accomplice, there could be no. conviction under the indictment. This the court refused to charge, and the defendant’s counsel excepted. The defendant’s counsel then requested the court to charge that the defendant could not be convicted under the third and fourth counts of the indictment, for the reason that the building was a dwelling house, and was the subject of arson in*the first degree. The court declined so to charge, and the defendant’s counsel excepted. The jury, by their verdict, found the defendant guilty of arson, in the second degree. The prisoner’s counsel tendered a bill of exceptions, and the judgment, was stayed until the same could be heard at general term upon certiorari.

      D. Pratt, for the prisoner.
    I. The court erred in refusing to charge' the jury that, if Ann Welch was. an accomplice and Smith was not an accomplice, there could be no conviction under the third and fourth counts:
    1. The court had charged that the prisoner might be convicted of the first degree, although the house was occupied at the. time by the prisoner himself. This had been so held in the Court of Appeals. (People v. Shepherd, 19 N. Y. R., 537.)
    2. It would follow that, if Durkin set fire to the house while Smith, who was not an accomplice, was lodging therein, it was a case of arson in the first degree.

      a. To constitute arson in the second degree, under these counts, the building must be a shop, warehouse or other building not the. subject of arson in the first degree. (2 R. S, 666, § 2.)

      b. If Smith. lodged in the house at the time, and was not an accomplice, it was clearly the subject of arson in the first degree.
    c. The general rule is, that the higher crime merges crimes of inferior grade, especially where the higher crime is capital; (1 Buss., 50.)

      d. It is the case of a conviction of an inferior grade where he might be convicted of the superior. There was no count to which the evidence could apply.
    IL The court erred in refusing to charge generally that the prisoner could not be Convicted under the third and fourth counts of the indictment:.
    1. The building, without regard to the persons lodging therein, was the subject of arson in the first degree.

      Frank Hiscock (District Attorney), for the People.
    There was no error in the charge. I apprehend it is to be contended by the prisoner’s counsel that the proposition embodied in the exceptions is, that if some Smith was in the building at the time of the firing, and was not an acceomplice of Durkin, then the prisoner could not be convicted of arson in the second degree, on account of the exception in the statute defining that degree of arson—“ not being the subject of arson in the first degree;” but no such question is raised by the exception.

      a. The exception does not even assume a Smith was in the building, and it was not an assumed fact upon the trial.
    5. But the assumption of such a fact by the exceptions would not be sufficient It was a question of fact, to be submitted to the jury.
    But granting that the question, as insisted on by the counsel for the prisoner, was fairly before the court, then We say it was properly disposed of by the court.

      a. We concede the doctrine that Usually in criminal statutes an exception in the enacting clause must be negatived'. That is doubtless the case when a single section of the statute, independently by itself, defines a crime complete in all its degrees.

      i. But when there is a series of sections of a statute defining an offense, each section defining a degree of the same offense; or where there is a gradation of offenses of the same species as in arson, it is not necessary to negative the exceptions or allege that the case is not embraced in some other section than the one in question. It is sufficient if the evidence may be applied to the section by virtue of which the punishment is to be awarded.
    It is a well established rule, that where there are' several species of the same general crime, with more or fewer circumstances of aggravation, as larceny, grand and petit, and felony aggravated by being a second offense, burglary, murder, manslaughter and many others, and subject to a gradation of punishments, it is not necessary to negative those circumstances which would render it more aggravated. (Commonwealth, v. Griffin, 21 Pick. R., 523; Same v. Squire, 1 Metc. R., 258; Same v. Devoe, 3 Id., 316; Same v. Larnard, 12 Id., 250.)
    The objection that the building fired was a dwelling house, and therefore the subject of arson in the first degree, is not tenable. A dwelling house is nó more the subject of arson in the first degree than in the third and fourth degrees. (§§ 4 and 6, p. 946, 3 vol., 5 ed., R. S.) The bare fact that it was a dwelling house does not bring it within- the exception of the statute defining arson in the second degree. (See § 9, p. 936 of same volume.) And this is made more manifest by the reading of 4th section (p. 946, vol. Last cited), which provides ■ against burning, in the night time, the house of another, not the subject of arson" in the first or second degree; showing ■clearly that the legislature intended that a house (see § 2, same page) might be the subject of arson in the second degree, if fired under the proper circumstances of aggravation.
   By the Court, Morgan, J.

The defendant was convicted of arson in the second degree, for firing a building adjoining a certain inhabited dwelling house, situate in' the city of Syracuse, belonging to one Austin Wagner. The same indictment charged the defendant with firing his own house in the night time, it being a dwelling house, and “ there, then and there being within the said dwelling house some human being, to wit, one Ann Welch.”

The evidence tended'to show that Ann Welch was an accomplice. The court charged the jury that if Ann Welch was an accomplice, then the prisoner could not be convicted under that count.

Ann Welch swore that one John Smith was in the defendant’s house the night of the fire, and slept with the defendant.

The defendant’s counsel thereupon raised the point that if Ann Welch was an accomplice, and Smith was not, there could be no conviction under the indictment. The court overruled the point, and the prisoner’s counsel excepted.

And this is the only point of any serious difficulty in the case.

The indictment did not charge that John Smith was in the house at the time of the fire. If there had been such a charge, perhaps the jury would have found the defendant guilty of ' arson in the first degree, for the jury might have believed Ann Welch as to Smith’s lodging there at the time of the fire. Evidently the jury must have believed that Ann Welch was an accomplice, or they would have found the defendant guilty of arson in the first degree.

Does it lie in the mouth of the defendant to say that he was guilty of a higher crime than the one for which he was convicted, when the difference is only in degree? The language of this objection is, that the defendant was guilty of arson in the first degree, and therefore was not guilty in the second degree.

The statute (2 R. S., 657, §9), defines arson in the first degree to consist “in willfully setting fire to or burning in the night time a dwelling house, in which there shall be at the time some human being; and any house, prison, jail or other edifice, which shall have been usually occupied by persons lodging therein at night, shall be deemed a dwelling house of any person so lodging therein.”

The offense of arson in the second degree, for which the defendant was convicted, is defined as follows: ‘‘ Every person who shall willfully set fire to or burn in the night time any shop, warehouse or other building, not being the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling house, so that such house shall be endangered by such firing, shall, upon conviction, be adjudged , guilty of arson in the second degree.”' (2 R. &, 666, § 2.)

It is argued that if the defendant’s house was occupied by John Smith as a lodger at the time the defendant fired it, it was the subject of arson in the first degree, and therefore the firing of it, although it endangered Wagner’s house, which adjoined it, could not be arson in the second degree. This argument, if sound, would require the district attorney to specify in his indictment that the building set fire to was not the subject of arson in the first degree. The construction contended for makes it a part of the ingredient of the offense of arson in the-second degree, that the house should not be so circumstanced as to be the subject of arson in the first degree. It is admitted that the language of the statute seems to favor such a construction, although in practice it has never been thought necessary to incorporate the negative into the indictment by way of exception.

The usual rule is well settled that where the accusation includes an offense of an inferior degree, the jury may convict of the less offense. Thus upon an indictment for burglariously stealing, the prisoner may be convicted of a simple larceny; upon an indictment for stealing privately from a person, the prisoner may be convicted of simple larceny (1 Chitty Cr. 638); and by our Revised Statutes the jury may find the prisoner guilty of an offense in an. inferior degree when the offense consists of different degrees. (2 R. S., 702, §2.) In The People v. Jackson (3 Hill R., 99), the indictment charged the defendant with producing an abortion of a quick child, which is punishable as a felony. The jury were allowed to convict the defendant of a misdemeanor only, the proof being that the child was not quick.

And where there are several species of the same general crime, with more or fewer circumstances of aggravation, subject to a gradation of punishment, the defendant may be convicted of either species, under an indictment which charges the higher offense.

It may be said, however, that the offense of arson in the first degree does not include arson in the second degree, but that it is a different offense. True, it does not necessarily include the inferior offense; but when it does so in fact, where is the difficulty, of bringing it within the géneral rule? If there is no inhabited dwelling house adjoining the one set fire to, there could be no arson in the second degree. But it happens here there was such a building; so the defendant was not only guilty of firing his own house, but of endangering that of his neighbor adjoining it. This last was a lesser1 offense, but it was included in the greater offense in this particular case; and the indictment was drawn with a separate count, charging it as a distinct offense, so as to meet the facts of the case.

It was not supposed, on the argument, that the objection would be available, if it had been left to the jury to decide, as a matter of fact, whether Smith was a lodger or not in the defendant’s house. If no one lodged there, the building would not be the subject of arson in the first degree, and the firing of it would be arson in the second degree—made so by the fact that it adjoined the inhabited dwelling house of Austin Wagner.

The main difficulty, therefore, arises out of the statutory definition of arson in the first and second degrees; for it is apparent that the prisoner was guilty of arson in the first degree, upon the hypothesis that his own building contained Smith as a lodger. The jury were, however, told by the judge that, notwithstanding this, they could legally convict him of arson in the second degree. The exception is to the legal proposition, and not to the propriety of advising the jury that they ought not to convict the defendant of the second offense if they believed him guilty of the principal offense.

The question, then, comes back to the point whether the defendant may be indicted and convicted of arson in the second degree, when the facts proved on the trial would justify a conviction for the principal offense, provided the indictment had properly charged it. lío doubt a person may be indicted and convicted of larceny, although the facts prove a burglary. Evidence of an assault with a weapon dangerous to life, will support a complaint for a simple assault, even if the complaint alleges that it was not committed with a weapon dangerous to life. (14 Gray R., 100.) And in Commonwealth v. Pike (3 Cush. R., 181), the defendant was held to have no just ground of objection to a conviction upon- an indictment for manslaughter, because the facts proved that he had been guilty of' murder. The propriety of taking such a conviction is another matter. So here there is no difficulty in coming to the Conclusion that the defendant was' guilty of setting fire to his own-building in the night time, which adjoined the inhabited dwelling house of Austin Wagner, and that the fire endangered Wagner’s house. But it is said his own house was “the subject of arson in the first degree,” whereas the statute speaks of firing a building “ not- the subject of arson in the first degree.” I have already suggested that if these words are á part of the description of arson in the' second degree, they should be negatived in the indictment. The plain import of such words, if they constitute one of the ingredients of the offense, creates an exception limiting the application of the statute as much as if it should read thus: “ Provided no one shall be liable to indictment and conviction for arson in the second degree, if the building set fire to shall be an inhabited dwelling house, in which there shall be at the time some human being.”

-1 think it was not the object of the statute to create such an exception, but simply to define the different degrees of the same crime with a view to graduate the punishment. The words, “Wot being the subject of arson in the first degree,” were only intended to distinguish between the different degrees of the same general offense. They prove the general identity of of the crime by a provision which declares, in effect, that the defendant shall not be the subject of. punishment under both sections of the statute. And- it follows that a conviction under one section of the statute would bar a conviction under the. other.

The court, in Commonwealth v. Squires (1 Mete. R., 258), gave the same construction to a statute somewhat similar to our own. By the Revised Statutes of Massachusetts (ch. 126, § 5), it was enacted that “ any person who shall maliciously burn, either in the night or day time, any banking house, store, manufactory, mill, barn, stable, ship, office, outhouse, or other building whatever of another, other than is mentioned in the third section,” shall be punished by imprisonment in the State prison not more than ten years. Section third enacted that “ any person who shall willfully and maliciously burn, in the night time, any meeting house, church, court house, town house, college, academy, jail or other building, erected for public use, or any banking house, warehouse, steam manufactory or mill of another (being with the property therein contained of the value of $1,000), or any barn, stable, shop or office of another, within the curtilage of any dwelling house or any other building, by the burning whereof any building mentioned in this section shall be burned in the night time, shall be punished by imprisonment in the State prison for life.” The indictment under the fifth section did not set forth that the building was “ other than is mentioned in the third section.” The court says (p. 263): “ This is not like the ordinary case of a statute declaring certain acts to be a crime under certain qualifications contained in a proviso or exception. Upon comparing the third and fifth sections of the statute, it is obvious that the exception here is rather to be considered in the light of a gradation of punishments to different degrees of the same species of offense; the third section providing, as it does, that all cases of willful and malicious burning therein described, shall be punished by imprisonment in the State prison for life, and the fifth section, after specifying certain cases, then providing generally for the punishment for burn-

ing all other buildings not mentioned in the third section. It is only another example of the same kind of gradation of punishments that is provided in cases of larceny of the various grades.”

The same construction was given to another similar statute in Massachusetts, in Devoe v. The Commonwealth (3 Metc. R., 316; Statutes of 1804, ch. 143, § 4). The indictment charged the defendant with breaking and entering, in the night time, a certain office, and stealing therein, without adding the words, “ not adjoining to or occupied with a dwelling house,” as contained in section four defining the offense.

•The court say: “It is conceded, as a general rule, that two distinct offenses cannot be charged in the same indictment' but this rule is subject to exceptions, one of which is, where the same combination of facts will bring a case within different penal provisions.” (p. 323.) I will cite another passage from the opinion of Chief Justice Shaw,.at page 327: “If it is intended to charge the mitigated offense, it is sufficient to charge those facts which constitute the crime, simply omitting the circumstances which, by the statute, would aggravate the offense and increase the punishment. In such cases, the words in the statute, “ without being armed,” &c., are not so much designed to constitute a description of the offense as to show that it is intended to distinguish it from a higher grade of offenses, within which it would fall if those circumstances existed.” (And see Larned v. The Commonwealth, 12 Metc. R., 240.)

According to the authority of these cases, it is not necessary to set forth the facts, although they exist, which constitute the higher offense, where there is a gradation of offenses of the same species, unless the prosecutor designs to convict for the higher offense; and it does not lie with the defendant to object that the facts proved brings his case' within a higher grade of offense of the same species; for a former conviction or acquittal of a minor offense, is a baa' to a prosecution for the same act charged as a higher crime, whenever the defendant, on trial of the latter, might be legally convicted of the former, had there been no other prosecution. (2 Leading Cr. Cas., by Burnett & Heard, 558.) In Johnson v. The People (1 N. Y. R., 379), the indictment charged all the facts necessary to constitute the crime of manslaughter, except the intent with which the acts were done, and in its conclusion, it characterized the crime as manslaughter; but the only intent charged was an intent to produce a miscarriage; and held that the indictment was fatally defective for the felony, but good for the misdemeanor. And it was conceded that a conviction for a misdemeanor, under such an indictment, would be a bar to a subsequent indictment for the felony.

In my opinion the defendant in this case could have been indicted and convicted, upon the evidence, of arson in the second degree, if there had been no other count in the indictment. It would be no defense to the charge, that the facts proved authorized his indictment and conviction for arson in the first degree. The objection of the defendant simply disputes this proposition, for it can make no difference that there was also a count charging him with the higher offense. That count was not proved. The defendant now says, the district attorney ought to have indicted him for the higher offense, and charged that John Smith was in his own house when it was set on fire. If we allow the objection, it may turn out on a second indictment, that his accomplice, Ann Welch, would locate some other Smith in the same house instead of John Smith, or, what is more probable, it- might appear that there was no one but his accomplices in the house when it was burned. And thus the defendant might obtain impunity by changing his ground upon each successive charge, while in fact he was guilty of arson both in the first and second degrees. I think the conviction is right and should be sustained.

Conviction affirmed and proceedings remitted to the Onondaga Oyer and Terminer.