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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 352 The question arising upon the record in this case, is whether a verdict convicting the accused of murder *Page 353 in the second degree, upon an indictment containing a single count for murder, drawn as required by the common law, is legal, and whether such verdict authorizes a judgment convicting the accused, and inflicting the punishment imposed by statute for that offence. In Fitzgerald v. The People (37 N.Y., 413), it was held by this court, that such an indictment was sufficient to warrant a judgment convicting the accused of the crime of murder in the first degree, under the statute of 1862 (Laws of 1862, p. 369). In the same case it was further held, that murder in the second degree, under that statute, consisted in the killing of a human being without a design to effect death by a person engaged in the commission of a felony other than that of arson in the first degree. It is insisted by the counsel for the plaintiff in error, that the accused cannot be convicted of murder in the second degree, unless the indictment charges that the death was effected while the accused was engaged in the commission of a felony as specified in the statute, and that the absence of such an averment in the present indictment, is fatal to the judgment. The counsel relies upon the case of Dedieu v. The People (22 N Y, 178), as sustaining this position. In that case it was held, that the accused upon an indictment for arson in the first degree, charging him with having in the night time, feloniously,c., set fire to the dwelling house of another, there being at the time some human being therein, was improperly convicted of arson in the third degree, upon proof of his having feloniously set fire to goods contained in such house, with intent to defraud an insurance company, which had issued a policy upon such goods, the building not having been at all ignited. In this case the question arose upon exceptions taken by the defendant to the evidence, and also to the charge. The case was decided correctly. The act constituting the crime of which the defendant was convicted, was not the same act for which he was indicted, nor was the intent charged the same. He was indicted for having set fire to a dwelling house, with intent to burn the same. He had not set fire to the house at *Page 354 all. The proof was that he had set fire to certain goods contained in the house, with intent to destroy such goods, to defraud the insurance company. The act and the intent so far from being identical, were plainly separate and distinct, and upon this ground the case was decided. Had there been no bill of exceptions in the case, and the record had merely shown that the jury had rendered a verdict against the defendant, convicting him of arson in the third degree, upon which judgment had been rendered, the case would have been more analogous to the present. It would not then have appeared that the defendant had been convicted upon proof of an act different from that for which he had been indicted. It was sought by the counsel for the people to sustain the conviction in Dedieu v. The People, upon the statute § 27, 702, 2 R.S. That section provides that upon an indictment for any offence, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find such accused guilty of any degree of such offence inferior to that charged in the indictment, or of an attempt to commit such offence. The court held that the statute did not apply to the facts of that case for the reasons above stated. In addition to such reasons, others were assigned; in some of which, to their full extent, I cannot concur, as I think their application would render the statute practically nugatory. As an illustration, it is said, in substance, that the statute applies to cases only where the indictment for the higher offence includes all the averments necessary to constitute the lesser, with the addition thereto of certain facts essential to the higher, and the latter are unproved, that the defendant may, by virtue of the statute, be rightly convicted of the lesser offence. If this is the only effect of the statute it is merely declaratory of the common law, as is shown in the opinion in the case itself, in regard to a conviction for murder upon an indictment for petit treason. The language of the statute clearly admits of a more extended application, and I apprehend that such *Page 355 was the intention in its enactment. Various criminal acts were made by the chapter in question offences of the same general name, but differing in degree, and in the punishment to be inflicted, according to the circumstances under, and the intent with which they were committed; such as forgery, arson, burglary,c. I think the true construction of the statute is, that when the act for which the accused is indicted is the same act for which he is convicted, the conviction of a lower degree is proper, although the indictment contains averments constituting the offence of the highest degree of the species of crime, and omits to state the particular intent and circumstances characterizing a lower degree of the same crime. If this be the true construction, it follows that, under an indictment for murder in the first degree, the accused may be convicted of any degree of murder, or manslaughter, for the unlawful killing of the identical person charged by the identical means charged in the indictment. This would not include a case where the person killed was not the same as charged in the indictment, nor where the means of effecting the death were materially variant from those the indictment charges. Under this construction, when the indictment charges the murder in the first degree, the accused could not be convicted of manslaughter in the third degree by proving that the death had been effected by a mischievous animal, of which the defendant was owner, and which he had willfully suffered to go at large, c., for the reason that the criminal act charged would be different from that offered in evidence. But this point could only be presented for review upon exceptions taken to the evidence, or to the charge to the jury. Hence, upon an indictment for murder in the first degree, a judgment convicting the defendant of manslaughter in the third degree must be sustained in the absence of any exception showing that evidence had been erroneously admitted, or some error committed in the charge. In the absence of any such exception the record would fail to show that the accused had been convicted of any other act than that charged, or that there was any material *Page 356 variance in the means employed from those charged in the indictment, but would show that the intent of the accused in effecting the death and the attendant circumstances were different from those charged, which difference constituted the offence of manslaughter in the third degree, instead of murder in the first. In the present case, the record shows that the person killed, and the means of effecting the death, of which the defendant was convicted, were identical with the charge contained in the indictment, but that the killing was without a design to effect death, and therefore not murder in the first degree, but was done while the defendant was engaged in the commission of a felony, other than arson in the first degree, and therefore under the statute of 1862, murder in the second degree. It is a general rule in criminal pleading, that when the act done is criminal only when done under a particular state of facts or circumstances, the existence of such facts and circumstances must be averred in the indictment, but the section of the statute under consideration has in effect provided that when the indictment is for a crime consisting of different degrees and depending upon the intention of the accused and the circumstances under which the act was committed, and the indictment charges such act to have been committed with the intent, and under the circumstances constituting the highest degree of the crime the defendant may be convicted of any lower degree, and consequently when there is a failure of proof of any part essential to a conviction of the higher degree, proof may be given of facts constituting a lower degree of the same crime, although the latter facts are not charged in the indictment, and the defendant may, upon such proof, be rightly convicted of the lower degree. In the present case, the presumption from the record is, that the prosecution proved the killing of John Abrams by the accused, by the means charged in the indictment, but failed to prove that the act was done with a premeditated design to effect his death, but proved that it was done while the accused was engaged in the perpetration of a felony. He was, therefore, rightly convicted, if evidence *Page 357 of the latter fact was admissible under the indictment. We have seen that the statute authorizing a conviction of a lower degree of the same crime, upon an indictment for a higher degree, makes the evidence authorizing such conviction, competent. Otherwise the statute would be inoperative. I the more readily adopt this construction, as I cannot see that the accused can be prejudiced thereby. He is informed by the indictment, of the particular crime charged, and of the means used in its perpetration, and that it was committed with the intent, and under the circumstances constituting the highest degree of that crime. He, therefore, comes to this trial not only prepared to show, if he can, that he is not guilty of the particular degree charged, but of no lower degree of the same crime. If acquitted upon the indictment, or convicted in any lower degree than that charged, he will find no obstacle in pleading his acquittal or conviction in bar to any subsequent indictment for the same crime. It exposes him to no danger of a conviction of the crime in any degree not warranted by the evidence. This he may readily guard against, by calling attention to it in the charge to the jury, and in case any error is committed, by the judge, in this respect, can correct such error, upon review, by taking the proper exceptions. My conclusion is, that the judgment should be affirmed.

All the judges concurring, judgment affirmed.