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another crime, or the one crime is not a lower degree of another crime, unless the latter crime necessarily includes the ingredients of the former crime. The crime of assault in the first degree is not constituted by the alleged acts constituting the crime of manslaughter in the first degree, because the act of manslaughter in that degree and the evidence proving the commission of the act do not necessarily, and in fact could not, prove the act of assault in the first degree. The principal element of the assault with intent to kill was no part of the manslaughter. The People cannot indict a citizen for a crime and have conviction for a different crime unless the ingredients of the latter are fully embraced in the former or necessarily averred in the indictment for the crime charged and proven upon the trial of the indictment. (Watson v. State, 116 Ga. 607; Reynolds v. People, 83 Ill. 479; Carpenter v. People, 5 Ill. 197; Prindeville v. People, 42 Ill. 217; Moore v. State, 59 Miss. 25; Commonwealth v. Roby, 12 Pick. 496; Diaz v. United States, 223 U. S. 442; Commonwealth v. Dean, 109 Mass. 349.)

In the statute under consideration (Penal Law, § 444) there is the legislative recognition of and compliance with the principles we have stated. It enacts that the defendant, under the prescribed conditions, "may be convicted of assault in any degree constituted by said act, and warranted by the evidence." The words," in any degree constituted by said act, and warranted by the evidence," are words of limitation. "Said act

A defend

is that charged or complained of in the indictment. ant may not, under the prescribed conditions, be convicted of assault in the degree having the measure of punishment which the jury would inflict. A defendant may be convicted only of an assault constituted by or necessarily included in the specifications of the indictment and proven by the evidence. The defendant at the bar, under the erroneous refusal of the trial judge to instruct the jury, was convicted of an assault which the specifications of the indictment averred he did not

commit, and the commission of which was not at the trial an issue or susceptible of proof.

The judgment of conviction should be reversed and a new trial ordered.

CHASE, J. (dissenting):

The defendant was indicted for manslaughter in the first degree. Manslaughter in the first degree is homicide when not justifiable or excusable, and "When committed without a design to effect death:

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"2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.

Code, § 1050.)

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(Penal

The indictment charged that the defendant "feloniously, wilfully, unlawfully, and wrongfully, but without a design to effect the death" of one Felix Wrzeszenski, made an assault upon him "by means of a dangerous weapon and firearm commonly known as a pistol or revolver" which he did "fire off, shoot, explode and discharge" at, towards and against said W., inflicting serious wounds from the effects of which he died.

It appeared at the trial that the defendant fired two shots at W., both of which passed through his left lung. W. died at a hospital about ten days thereafter. The attending physician testified in substance that W. failed to obey the instructions given him and that in his judgment, if W. had obeyed the instructions so given him he would have recovered. Other testimony was received to show that W. died from the wounds but a question of fact thus arose as to whether W. died from the wounds inflicted by the defendant.

It is provided by section 444 of the Code of Criminal Procedure as follows:

"Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree

inferior thereto, or of an attempt to commit the crime.

Upon

a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence."

Assault in the first degree is defined by section 240 of the Penal Code as follows:

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A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death; or

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"Is guilty of assault in the first degree.”

The defendant was found guilty of assault in the first degree. An appeal was taken to the Appellate Division from the judgment entered upon the verdict and the judgment was there unanimously affirmed. (People v. Santoro, 190 App. Div. 56.)

The question whether the defendant could under the indictment be found guilty of assault in the first degree, did not arise during the trial prior to the charge of the court. At the close of the testimony for the People counsel for the defendant asked that the indictment be dismissed and the defendant discharged because the People failed to prove the defendant guilty of the crime set forth in the indictment or of any crime. The motion was denied. No direct evidence was offered by the People as to the intent with which the defendant shot W. It was a fact to be inferred from the facts proven. The defendant however, was asked by his counsel whether he intended to kill W. Counsel for the People objected because the intent with which the shooting was done is a question to be determined by the jury. The objection was overruled and the defendant answered," No, sir. I did not intend to kill him."

The court in charging the jury read to them the provisions of the Penal Law defining assault in the first, second and third degrees, and at the close of the charge said: "If there is a

reasonable doubt in your mind he (defendant) is entitled to the benefit of that doubt and your verdict should be acquittal. If there is no reasonable doubt you may bring in a verdict under any of the provisions I have stated to you." No exception was taken.

Counsel for the defendant said: "I ask your honor to charge the jury that simply because the jury have any doubt as to whether the defendant committed a greater crime would be no reason whatever for bringing in a verdict of assault unless they found that the defendant had committed the crime of assault." The court charged as requested.

No suggestion was made on behalf of the defendant that the jury could not legally find him guilty of assault in the first degree. Subsequently the jury came into court and asked to be informed as to the punishment prescribed for assault in the first degree.

The court complied with the request of the jury, whereupon counsel for the defendant said: "I ask your honor to charge that the defendant cannot be found guilty of assault in the first degree," but the court refused so to charge.

I think the belated claim in behalf of the defendant is nevertheless in time to raise the question as to his conviction under the indictment.

It was a rule of the common law that when an indictment charges an offense which includes within it another inferior offense or one of a lesser degree, the defendant could be convicted of the inferior offense or one of lesser degree.

In England the rule did not permit finding a defendant guilty of a misdemeanor on a charge of a crime constituting a felony. This distinction, which was based upon certain privileges accorded a person charged with a felony, was not applicable in this state. The rule of the common law that prevailed in this state was to preven the prosecution from failing when the alleged facts and circumstances charged in the indictment. were proved, if such proofs made out a crime though of au

inferior degree.

(People v. Jackson, 3 Hill, 92.)

The inap

plicable averments in the indictment were treated as surplusage. (People v. White, 22 Wend. 167, 175.) The rule is now

included in sections 445 and 444 of the Code of Criminal Procedure. Section 445 provides: "In all other cases (cases defined in section 444) the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”

Section 444 of the Code of Criminal Procedure, from which we have quoted, is more comprehensive than the common-law rule or the rule as provided by said section 445. It is the apparent intention and purpose of the statute to permit the conviction of a person indicted for the crime really committed by the overt acts set forth in the indictment. While intention is of material, and in many cases of commanding importance in determining whether a person is guilty of a crime and of the degree thereof, there must in at least all crimes of violence, be overt acts upon which to base an indictment and conviction.

It is expressly provided in said section 444 of the Code of Criminal Procedure that if upon a trial for murder or manslaughter, it is not proven that the acts complained of were the cause of death "the defendant may be convicted of an assault in any degree constituted by said act, and warranted by the evidence."

A person on trial for a crime is apprised by the indictment and the statutes of the fact that he is not only charged with the overt acts mentioned in the indictment and with the crime specifically mentioned therein, but also with all other inferior degrees thereof and of an attempt to commit the crime, and that if the indictment is for murder or manslaughter and the act complained of is not proven to be the cause of death he is thereby charged with and may be convicted of assault in any degree constituted by the act charged in the indictment and warranted by the evidence.

The indictment does not include a count of a higher nature.

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