People v. Snyder

2 Park. Cr. 23

Opinion

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

Footnotes

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(a).

Prisoner convicted of burglary. ’

Rex vs. Gibson et al, 1 Leach, 357; Archbold, 166.