104 N.Y.S. 675 | N.Y. App. Div. | 1907
Lead Opinion
. . By the' indictment the defendant Munroe and One William Barry were accused of the crime of robbery in the first degree. It was ‘charged that, the said Munroe and said Barry jointly, each being the accomplice of the other and actually present at the time, did feloniously assault one Cólbert and did feloniously steal, take and carry away from the person of said Colbert against his will by'means of force and violence certain moneys, to, wit, the sum of eight-dollars. Upon the trial Colbert swore that Munroe and Barry assaulted him upon Liberty street in the city of Albany about twelve o’clock on the night-of the 16th of August, 1906, and by violent means took
By section- 224 of the Penal Code robbery is defined, as far as material to this controversy, as the unlawful talcing of personal property from the person of another, against his will, by means of force or violence';- By section- 228" such robbery is in the first degree when committed by one armed with a dangerous weapon, or' aided by an accomplice "actually present. By section 229 robbery in the second degree is-an unlawful taking accomplished by force or fear when not under circumstances amounting to-robbery in the first degree but accomplished either, first, by the u^e of violence, or, second, by putting the person robbed in fear of immediate in jury to his person. By section 230 robbery’in the third degree is any crime of robbery which does not come within the definition of robbery in the first or second degree. The punishment for robbery in the first degree is for a term not exceeding twenty years ; in the second degree for a term not exceeding fifteen years; in the third degree for a term not" exceeding ten years. (Penal Code, §§ 231-238.) '
There was no claim upon the trial arid no evidence that the defendant had with him a dangerous weapon, and upon the evi
By section III of the Code of Criminal Procedure it is "provided that 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 pf any degree inferior thereto, or of an attempt to commit the crime.” ■ Under the -charge of the court the jury have determined that the defendant Munroe did commit robbery by means of force and violence. The jury were not told that in order to convict him of .robbery in the-first degree the robbery must have been committed by" the defendant with an accomplice actually present; nor" were the. jury -told that they might, cortviet the defendant of any lesser degree of the crime charged^ although the jury were told that the defendant might be found guilty even if .Barry. were found not guilty. The defendant’s^ counsel made no complaint of this manner of the presentation of. the case" to^ the jury, and did not' ask a charge that- in order to convict of the' crime charged the robbéry must have been committed with the' aid of an accomplice -actually present. It is apparent ' that if the jury had.been instructed upon these points they would have returned a verdict- of guilty of robbery in the second, degree against Munroe instead of ..robbery in the .first degree. "They" have necessarily found .the defendant Munroe guilty of every element of the .crime of robbery in the second degree, and we may assume that the trial judge sentenced him for the only crime of which "• defendant could be found guilty under the charge delivered..
The question is then presented whether this conviction must be'" set aside and a new trial granted, when, it was strictly in accordance
By section 542 .of the Code' of Criminal Procedure it is provided that after hearing the appeal the court must give judgment without regard to technical errors or defects 'or to exceptions which do. not affect the substantial rights of the parties..
In People v. Kerns (7 App. Div. 535, 540) it is said n “ This statute goes beyond mere technical errors and defects such as were cured by the Statute of Jeofails (2 R. S. 728, § 52). It commands the court not to reverse a conviction unless the substantial rights of the defendant have been infringed.” - • ■
I am not' in sympathy with a technical construction of the .criminal law which would go to release a criminal found guilty of every element of a crime, although perchance improperly named as in the first rather than in the second degree, where the punishment inflicted is far within the punishment prescribed for either degree of the. crime. The failure of the jury to properly name the degree of the crime arose from the failure of the trial judge to fully instruct them upon the náturé of the crime for which the defendant was being tried, to which failure defendant’s "counsel -took no exception at the trial. Bo injustice has: been done, no substantial right has been infringed, and the conviction should' in my judgment be affirmed. " ■
All concurred; Kellogg, J., in memorandum-; Cocheane, J., not sitting. '-
Concurrence Opinion
(concurring):
I concur in the result. The defendant was convicted of robbery , in the first degree.- The mere fact that the punishment inflicted was such as might follow a conviction of robbery in the second degree does not warrant an affirmance of the conviction if it is determined that the defendant .was not guilty of robbery in the first degree as charged, but might have been guilty of robbery in the second degree. The question is whether the evidence justified the conviction of the crime charged, not whether it justified a conviction of a crime not charged and not found against the defendant, the.punishment of which is no greater than the one inflicted.
The evidence tends to show that the defendant, Barry and two
In People v. Massett (7 N. Y. Supp. 839), relied upon by the appellant, it. is clear that - if,any crime was committed it was committed. by the three persons acting together, and it was held that an acquittal of the. two was inconsistent with the conviction of .the third, and the conviction.was, therefore, set aside. But .under the circumstances of this case the acquittal of Bany is not inconsistent with the defendant’s guilt. The conviction and judgment should, therefore, he affirmed. _
Judgment of conviction affirmed.