7 A.D.2d 410 | N.Y. App. Div. | 1959
The evidence as to the guilt and the criminal responsibility of the defendant fully warranted his conviction for grand larceny in the first degree, and prejudicial error is not to be found either in the conduct of the trial, the court’s rulings, or the prosecutor’s summation. The only matter which merits comment is the sentencing of the defendant as a second felony offender.
In 1943, when defendant was serving in the Armed Forces of the United States in the State of California, he was convicted by an Army general court-martial. The charge and specification under which he was tried read as follows: “ Charge TV — Violation of the 93rd Article of War: Specification—In that General Prisoner Arthur (MMI) Benjamin (formerly Private, 90th Air Base Squadron, Merced, California) did, at Sacramento, California, on or about June 11, 1943, with intent to commit a felony, viz., murder, commit an assault upon Corporal Charles Bell by willfully and feloniously shooting at the said Corporal Charles Bell with a dangerous weapon, to wit a pistol.”
It is the contention of the defendant that his court-martial conviction cannot be deemed a conviction of “ a crime which, if committed within this state, would be a felony” (Penal Law, § 1941), because he was charged with violation of the 93rd Article of War,
In People v. Olah (300 N. Y. 96) the Court of Appeals held that in order to ascertain the crime of which a defendant had been previously convicted, the statute which created and defined the crime would have to be considered, and if the minimal elements essential for conviction of that crime would not constitute a felony in this State, a defendant could not be sentenced as a second felony offender. Ordinarily we look to the statute to determine the nature, definition and basic elements of the crime of which the defendant has been convicted rather than to the evidence adduced at the trial, or other evidentiary and narrative allegations embodied in the indictment or information. This does not mean that we may never concern ourselves with the specific charges that were leveled against the defendant. “ The rationale of Olah does not license the courts below, in sentencing recidivists, to disregard the indictment or information upon which a conviction in a sister State is based in determining whether the crime charged therein constitutes a felony in New York. The intent and spirit of the Olah rule require that the courts of New York abstain from considering the surplusage
When we are unable to determine the exact nature of the crime charged by reference to the statute alone, either because the statute fails to give a substantive definition of the crime (Matter of Florance v. Donovan, supra; Matter of Kaytes v. Donovan, supra; People v. Wilson, supra), or because a single statute presents several distinct and alternative grounds for conviction (People ex rel. Gold v. Jackson, supra; People v. Love, 305 N. Y. 722; People v. Markus, 7 A D 2d 997), it becomes necessary to examine the essential operative allegations comprising the charges actually preferred against the defendant in the indictment, information, or specification in order to ascertain with precision the elements of the crime of which he has been convicted. The crime cannot be enlarged or expanded by allegations of the specific acts performed, but the charges may serve to limit or narrow the basis of the conviction.
The 93rd Article of War, unlike article 128 of the present Uniform Code of Military Justice (U. S. Code, tit. 10, § 928), is not a substantive statute defining a crime, but merely, as its heading indicates, an enumeration of the “Various Crimes” punishable as a court-martial may direct. Several alternative grounds for conviction thereunder are set forth. Examination of the specification on which defendant was found guilty as charged enables us to eliminate entirely the possibility that his prior conviction was for any crime which would not be considered a felony in this State. The crime charged was “ Assault with Intent to Commit a Felony, Viz. Murder ” .by means of a dangerous weapon, a pistol, clearly a felony under our laws (Penal Law, §§ 241, 242). The essential elements of the substantive crime labeled ‘ ‘ Assault with Intent to Commit a Felony ”, whether defined by Federal law (Matter of Florance v. Donovan, supra; U. S. Code, tit. 18, § 113), common law (Collins v. McDonald, 258 U. S. 416; 4 Jones’ Blackstone [1916], § 251; Manual for Courts-Martial, U. S. Army [1943], pp. 168, 178), or the law of the jurisdiction where the crime took place (People v. Wilson, supra; Matter of Kaytes v. Donovan, supra; California Penal Code, §§ 217, 221), correspond to the same elements of the felony as defined in New York.
M. M. Frank, McNally and Stevens, JJ., concur.
Judgment unanimously affirmed.
Formerly section 1565 of the United States Code. It read: “Various Crimes. Any person subject to military law who commits manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, embezzlement, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing, or assault with intent to do bodily harm, shall be punished as a court-martial may direct".