20 N.Y.S. 755 | N.Y. Sup. Ct. | 1892
The indictment consisted of three counts, the first charging the prisoner With assault in the first degree for having assaulted the plaintiff “with a deadly weapon, and with intent to kill.” The. other two counts charged assault in the second degree. Upon the trial.the learned judge directed the jury that there was not sufficient evidence to warrant a conviction
The.claims that there is wanting evidence of intent, that the instrument was an iron, instead of a steel, square, and that it was not a weapon or instrument likely to produce grievous bodily harm,—:all these we regard as without merit. . The court was therefore right in its ruling, disregarding the .motion made by the prisoner’s counsel that the jury be advised to acquit, ■and in overruling the motion made to acquit the prisoner, on the ground of the variance, between the facts proven and the facts alleged in the indict.aaent.
The verdict of the jury was clearly right, and this court, even though it has the power, should not interfere therewith. The judgment should be affirmed.
Lawrence, J., concurs.