delivered the opinion- of the Court.
The defendant is indicted for an assault, with intent to commit murder. The jury have, by their verdict, under the instruction of the county court, acquitted him of the offence charged, and convicted him of a common assault, and the question is, will the law justify the verdict ?
It is a general rtile at common law, “where the accusation in the indictment includes an offence of inferiour degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious.” The exceptions to this rule are such as evidently tend to favour the accused, and to prevent oppression on the part of the prosecutor. Where the defendant, by being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim, the jury must acquit altogether. One cannot at common law be found guilty of a misdemeanor, on an indictment for felony, because he would by that means lose the benefit of having a copy of the indictment, a special jury, and making full de-fence by counsel.
*183As a further evidence that the exceptions to the general rule before stated, are founded upon the principle of favour to the defendant, and not upon the difference in the grade of crimes, whether of higher or lower degree, it will be noticed, that no one can be convicted of petit treason on an indictment for murder, because he would lose the benefit of a larger number of challenges to the jurors. In the latter case, he is entitled to twenty only, and in the former to thirty-five. But on an indictment for petit treason, he may be convicted of murder, because he thereby enjoys, in this respect, a higher benefit. So too, on an indictment for grand larceny, he may be convicted of petit larceny. The former is a capital offence, the latter not. These principles seem to be fully supported by the authorities, 1 Chit. C. L. 638-9 — Starkie, C. P. 379, 381 — 2 East. C. L. 516-17-18 — 2 Hawk, P. C. 624-5. In the case Rix vs. Westbur, Str. 1137, it was decided, that on an indictment for felony, the defendant' could not be acquitted of the offence charged, and found guilty of a trespass. The report of the case does not disclose the grounds of the decision, but the counsel in the case, and the elementary writers, assign the same reasons as before noticed, and the decision itself is opposed to several cases before decided. If this case is to be treated as an authority by which we ought to be governed, it will not apply to the case before us, as the crime charged in the indictment is not felony at common law. (1 East. C. L. 411.) It seems, that in the case of indictment for felony, if the jury find a special verdict, and the facts show the offence to have been trespass only, judgment may be given accordingly_C. Jac. 697-8.
By the law of this state, there is no case in which on an indictment for a higher offence, the accused will be deprived of any benefit on trial, that he would have been entitled to, if indicted for an offence of inferiour degree. But on the contrary, the statute has in the case of high crimes, given him a right to peremptory challenges, to which he is not entitled on an indictment for inferiour crimes. And no good reason can be assigned, why the government or the prisoner should be subjected to the additional expense and trouble of a second indictment, in cases like the present. The suggestion that this mode of proceeding is oppressive to the defendant, being thereby exposed to augmented expense in defending, required to procure bail to a greater amount, and subjected to increased costs, are not well founded. There would be force in the objection, if it could be applied to the finding by the grand jury, and a presentment for the more aggravated offence avoided. But the presentment is made, and the accused must necessarily be exposed to the expense of a trial for the crime with which he is charged, and to the procuring of such bail as the nature of the crime charged demands ; and as to taxable costs against him, on conviction of the minor offence only, the rule is, that he is not to be charged with any costs, but such as were necessarily incurred in establishing the fact of his guilt, in reference to the crime of which *184he *s convicted. Any costs that may have arisen, exclusively applicable to the offence of which he is acquitted, cannot be taxed against him. It is urged, that as the statute has in particular cases authorized an acquital of the offence charged, and a conviction of one of inferiour degree, the Court are bound to consider the legislature intended to confine the application of this principle to cases specially provided for. This is a consideration of weight, and were there any doubt in relation to the common law, or any evil to be apprehended from our adhering to it, the Court would incline to the opinion, that the defendant ought to be discharged. But as its manifest tendency is to fa-vour the accused, as well as to save expense both to him and the state, and as the legislature have by statute adopted the common law, and required all courts to take notice thereof and govern themselves accordingly, we consider the instruction of the county court to the jury, in this case, to be correct, and that the verdict must stand.
Jonas Clark, attorney for the state. Chs. K. Williams and R. B. Bates, for the respondent.The judgment is, that the motion is overruled, and the cause is remanded to the county court for sentence.