7 N.Y.S. 839 | N.Y. Sup. Ct. | 1889
The appellant was jointly indicted with Charles Cornell and Joseph Lull for robbery in the first degree. The indictment charges that these three men, by the use of violence, robbed John O’Byrne of a sum amounting to $34. The defendants were jointly tried, and the jury, under the proof submitted to them for their consideration", rendered the extraordinary verdict acquitting the defendants Cornell and Lull, and convicting the appellant Massett of robbery in the third degree. The evidence upon the part of the people consisted principally of the testimony of the complainant John O’Byrne; and, as the question of the guilt or innocence of the persons
There seem to be two extraordinary circumstances connected with this verdict. - The first is the acquittal of Lull and Cornell and the conviction of Massett, when the evidence against Lull and Cornell was precisely the same as that against Massett; the second is the rendering of a verdict against Massett of guilty of robbery in the third degree, when it was clear that, if he had been guilty of anything, he was guilty of robbery in the first or second degree. Robbery in the first and second degree is “all robbery accomplished by force or violence, or by fear of immediate injury to the person,” etc. And robbery in the third degree is all other robbery.
If any robbery whatever was committed, it certainly was committed with force and violence; and therefore the appellant could not have been guilty of robbery in the third degree. This is referred to for the purpose of showing how extraordinary was the conduct of the jury in considering the evidence in the case. The defendants, upon their behalf, were examined, and testified that no such transaction took place; that the complainant refused to pay for the drink; that he was ejected from the saloon, and that was all; that he was neither pulled down, nor was he in any way assaulted, further than being shaken by Massett, who took hold of the lapels of his coat when he refused to pay for the drinks; that he was greatly under the influence of liquor, and was politely assisted out. The jury, in the consideration of this evidence, either must have violated their oaths in the acquittal of Cornell and Lull or in the conviction of Massett, because, as already stated, the evidence against the one was precisely the same as the evidence against the others. They were all engaged in the robbery, or none of them. If the complainant’s story was not sufficient to convince the jury as to Cornell and Lull, clearly it was not sufficient to convince them as to Massett. If Lull and Cornell were not guilty, Massett could not possibly have been guilty. Under these circumstances, it would seem as though Massett had been convicted of keeping a liquor saloon, rather than of the offense for which he was indicted. Juries should not be permitted to render verdicts which are so inconsistent the one with the other. A verdict of this kind is entitled to no consideration, and should be set aside at once, as it shows, whichever horn of the dilemma you may take, a disregard by the jury of the evidence adduced in the case. The judgment must be reversed, and new trial ordered. All concur.
Pen. Code N. Y. §§ 228-230.