delivered the opinion of the court.
The defendant was Indicted for robbery in the first degree; A trial was had and the jury brought in a verdict against him of robbery in the second degree. The jury was then discharged, and the court subsequently, of its own motion, set the verdict aside. The defendant then made his motion to be released from further custody, on the ground that he had been acquitted of the offense charged against him in the indictment. This motion was overruled, and at a succeeding term he was again tried and convicted of larceny. As there were no degrees in the crime charged in the indictment, the first verdict was palpably erroneous and not responsive to any issue presented. But under what may now be considered the well established rule in this State, it operated as an acquittal of the offense of robbery in the first degree, as charged in the indictment, and the only question to be considered is, whether it was competent on the same indictment to arraign and convict the defendant of larceny.
A ease very mueli in point is the State vs. Jenkins (36 Mo., 372), where it was held that a party indicted for robbery in the first degree could not be convicted of robbery in the second degree, and that, in such a case, a verdict of robbery in the second degree amounted to an acquittal of the charge of robbery in the first degree. But it was said that the indictment contained a description of the offense of grand larceny, for which the defendant might be tried. The indictment in this case contains all the descriptive elements necessary to constitute the crime of grand larceny, but as the defendant was not convicted of that offense on the first trial, but of a wholly different one, can he be again arraigned and tried for it now ?
Wharton lays it down as a settled principle that an acquittal on an indictment for a greater offense, is a bar to a subsequent indictment for a minor offense, included in the former, wherever, under the indictment for the greater offense, the defendant could have been convicted of the less; and that an acquittal on an indictment for robbery, burglary or larceny, may be pleaded to an indictment for larceny of the same goods, because *66upon the former indictment, the defendant might have been convicted of the larceny. ■ (1 Wliart. Grim. Law, 6th Ed. 560.)
Bishop says, that, “where several crimes are included one within the other, obviously a conviction for any higher one bars a prosecution for any lower; since the greater includes the less. And, as a general rule, the same consequence follows an acquittal, because generally there can be a conviction for the lower on an indictment for the higher; but, sometimes, owing either to the form of the allegation, or to the lower offense being a misdemeanor, while the higher is a felony, such conviction cannot be had; and then, though the party is acquitted of the higher, he may be indicted for the lower. Thus, a trial and acquittal for a robbery bars an indictment for larceny of the same property; but, where the rules of the English common law prevail, no acquittal for felony can bar a prosecution for misdemeanor.” (I Bish. Grim. Law [3d Ed.}, §887.)'
In Heikes vs. The Commonwealth (2 Casey, 514), it is held, that where a defendant has been' once tried for an offense upon an indictment, on which he could have been legally convicted and sentenced, the plea of mitrefois acquit, will avail him on a second indictment for the same offense. And the very question here presented came up in The People vs. McGowan (17 Wend.,386), where it was decided that the indictment, although for a robbery, involved the question of larceny, of which the pi’isoner, under that indictment, might have been convicted, and, as the prisoner had been acquitted of the robbery, he had also, within the issue, been tried and acquitted of the larceny. As in the present case, the defendant might have been convicted, upon the indictment, of either robbery in the first degree or grand larceny; yet as he was convicted of neither offense, but of an entirely different one, the verdict operated as an acquittal, and he could not again be arraigned and tried tor either.
With the concurrence of the other'judges,the judgment must, therefore, be reversed.