Ex Parte Finnegan

By the Court, Belknap, C. J.: The return to the writ of habeas corpus shows that petitioner was charged with the crime of selling ardent spirits to an Indian, and convicted of an attempt to commit that offense. It is contended that the judgment is void, and the restraint illegal for the reason that the conviction was of a different offense from that charged. This contention is answered by the provisions of our criminal practice act (section 4377, Cutting's Compilation), as follows: "Sec. 412. In all cases the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged.” It is said that the above section having been enacted in the year 1861, and long prior to the existence of the statute prohibiting the sale of ardent spirits to Indians, the later statute is not within the operation and effect of the elder one. Section 4377 is part of the criminal practice adopted at the first session of the legislature as a general rule of practice for the trial of criminal cases, and is applicable to all eases then or thereafter defined by statute. Let the writ be dismissed, and the petitioner remanded to the custody of the warden of the state prison. ’