34 N.Y.S. 262 | New York Court of General Session of the Peace | 1895
In reference to your contention, Mr. Caffrey, that the verdict is against the evidence, and inconsistent with the evidence, I desire to say that it is true that the law provides that a jury may find a defendant guilty of a lesser degree of crime than that charged in the indictment. But that provision of the Code of Criminal Procedure does not, in my opinion, curtail the rule of common law, or in any way interfere with its operation, that, if a defendant be found guilty, he should be found guilty in accordance with the evidence introduced. The defendant was indicted for robbery in the first degree. The jury must have believed the evidence introduced to substantiate that crime, or they could not have convicted him of any degree of crime. The evidence was, substantially, that the defendant seized 'hold of the complainant, and held him, while Mack stole the complainant’s watch. In rendering a verdict of guilty of any degree of crime, the jury must have believed the evidence iof the complaining witness as to the robbery. The defense interposed is that of an alibi. The defendant testified in his own behalf, and McKenna, one of the co-defendants, also testified in support of the alibi. The testimony of the defendant and his co-defendant was that the defendant was in a liquor saloon, some blocks away, when the robbery was committed.