131 N.Y.S. 545 | N.Y. App. Div. | 1911
This is an appeal from a,judgment of the Court of General Sessions, New York county, convicting’ the defendant of the crime of assault in the first degree. _The indictment is in the common-law form and charges that the defendant “with force and arms, in and upon one Pasquale Alloca, in the peace of the'said People then and there being, feloniously did make an assault, and to, at and against him, the said. Pasquale Alloca, a certain pistol then and there leaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale. Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity.”
Under such an indictment it seems that the defendant could properly be convicted of the crime charged by proof of the crime as defined by the provisions of the Penal Law. (People v. Enoch, 13 Wend. 159; People v. Darragh, 141 App. Div. 408; affd., 203 N. Y. 527, without opinion.) The evidence was such that the jury might have found that although the defendant did in fact shoot Pasquale Alloca he did so with intent to kill one Giovanni Alloca, and the appeal calls in question the ruling of the trial court to the effect;that if “the defendant intended to kill the brother [Giovanni], but struck the complaining witness [Pasquale] with the intention of killing the brother [Giovanni] it would be assault in the first degree ” as charged in the indictment. This the defendant claims to be erroneous for two reasons, first, because it authorizes a conviction for a crime not charged in the indictment, and second,, because it authorizes the jury to dispense with the element of intent made necessary by the statute under which the
“ 1. Assaults another with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death; or,
“ 2. Administers to * * * another, poison, * * *;
■ “ Is guilty of assault in the first degree.”
(Penal Law [Penal Code, § 217], § 240.)
The distinction between the two statutes is obvious when their terms are compared. The crime as defined by the Revised
It follows that the judgment of conviction must be affirmed.
Ingraham, P. J., Laughlin,- Clarke and- Dowling, JJ.-, concurred.
Judgment