State v. Scott

The opinion of the court was delivered by Isham, J.

The respondent was indicted for manslaughter, and o on trial was convicted, under the charge of the court, of a common assault and battery. The jury have found by their verdict, that the death of Bailey was not occasioned by the assault, beating and wounding, as all edged in the indictment, and the question is, can a conviction for an assault and battery be sustained on an indictment for manslaughter.

In England, the rule seems well settled, that “ where an indict- “ ment includes an offense of an inferior degree, the jury may dis- “ charge the defendant, of the higher crime, and convict him of “ the lesser.” As on an indictment for murder, he may be convicted of manslaughter; for robbery, of theft; for grand larceny,of petit larceny, andón an indictment founded on a statute he may be convicted of an offense at common law. In all these cases, and others of a similar character, the inferior offense of which he is convicted, is of the same character as the greater of which he is indicted, only it is inferior in degrees of guilt. The evidence introduced to prove the greater offense, sustains the latter. The principle is favorable for the respondent, and for which he has no reason to complain.

It is equally well settled in England, that on an indictment for a felony at common law, a conviction cannot be had for a misdemeanor'. The'reasons assigned are, that the respondent loses the *130 right of a special jury, benefit of counsel, and a copy of the indictment, ,and for this he has reason to object and complain, and courts adopting rules most favorable for the respondent, will not allow such conviction. But for these causes, we see no reasons why at common law, such a conviction would not be sustained. These reasons manifestly do not exist in this State.

Felony, as existing at common law, is not known under the laws of this State, as crimes do not work a forfeiture of the estate. But offences are distinguishable into what may be termed crimes and misdemeanors ; the former punishable capitally, or by confinement in the State Prison, and the latter by fine, or imprisonment in the county jail. On the trial of these cases, there is no difference in the mode of trial or the right of the respondent, and no reason exists in this State, why one indicted for that which would be a felony at common law, may-not be convicted of a misdemean- or. The conviction would bar a subsequent prosecution, as well as a conviction for theft, under an indictment for burglary or robbery ; indeed, we must consider this subject as having been decided* in this State in the two cases to which we have been referred. In case of State v. McLean, 1 Aik. Rep. 313 , the respondent was indicted for forgery, which was punishable by imprisonment in the State Prison, but of which offence he was acquitted by the jury and convicted of a misdemeanor, a cheat, an offense at common law, and fined. So in the case of State v. Coy, 2 Aik. Rep. 181 , the respondent was indicted for an assault with intent to murder, an offense punishable by imprisonment in the State Prison, and on trial he was acquitted of that offense, but convicted of a common assault. Manslaughter is punishable by imprisonment in the State Prison ; it is followed by no greater punishment or legal consequences than forgery or an assault with intent to murder. And if a jury in those cases may acquit of the greater offense, and convict of the lesser, it would seem to follow, as a necessary conclusion, that the same principle would apply to the other case.

The result is, that the judgment of the county court must be affirmed.