The People v. . BransbyThe People v. . Bransby
*1 People Bbahsby. 525 The of case. Statement in Plaintiffs Error, Defend The v. Johh People, Bransby,
ant in Error. criminal, A an conviction for assault cannot be sustained where no has battery been committed and none intended or threatened attempted, by party accused. It is to the offense that violence to the indispensable person designed. either menaced or offered, is no There in this rule indignity exception case of offered to female, consenting she is a where to an involving act her own party dishonor. In a court of should be review, the trial interpreted light in the of the in and accordance with evidence, ordinary popular language, jury. as it would be understood import naturally prеsiding judge An erroneous instruction authorize the will not reversal judgment, finding, of a where it form of the matter of appears wrought legal did that the error not affect the result no actual necessity, prejudice to the party. defendant in error-was indicted
The on Ida He convicted Klube. was battery Onondaga sentenced to Court for one Sessions, imprisonment and a fine of $250. year the time another indictment
At of the trial was pending him in the Court of with the Terminer, Oyer charging transaction as a same rape.
The accused He had was haekman Syracuse. pursued over had twenty calling city years, always sustained character. good native of Ardennes, Prussia. complainant and claimed
She twenty-three years age, the words “hotel” understood two words English, as to the extent of evidence, acquaintance sleep.” conflicting. language, and at arrived the time She recently country, occurrence in was on her railroad way by question, to Geneva. She had no but was travel- personal attendant, other Germans train. arrived ing emigrant They at on the 4th 10 and 11 between Syracuse August, 1863, at had a o’clock She and remained night. through ticket, the room of the to conducted depot anby Bbaitsby.
Statement ease. *2 intended to on with next as she road, officer of go at train six o’clock the morning. emigrant About an hour after Bosenkrans, midnight, night after all but her ordered watchman, out, examining others her He soon after went to remain. out, tickеt, permitted and he matter, to his own account when according returned she was gone. ordered that after others were away,
She testified and and talked walked the room’ accused came down in, up that he came her said and Bosenkrans; up something with ” “ hotel and the words understand, which did she except her and motioned to her to he satchel took sleepthat follow; him went with to the Sherman House, that she that he that her first to afterwards he took sitting room; who her to her and the carried light, accompanied porter, to have been on the hall of which seems room, principal that he her in third remained with the room when floor; the servant that he soon out for few left; moments, stepрed her and re- his she took off shawl that absence during until mained his that he came return; seated when back, her a door, locked the offered his put key pocket, that which liquor, proved sherry wine; glass containing did that he motioned tasted but not drink to .the bed it; she did not under- about which she sleep, spoke something her dress weather was that she ; behind, opened stand that her he undressed chair; continued but hot, sitting then that went her, bed, extinguished before light; she and fell that when woke he was asleep; she fatigued she her feet all that with her to bed; struggled carrying his almost smothered but was she could, weight then re- he had connection with she that person; there that she remained for about the chair; turned to crying same when the minutеs, -thing repeated, fifteen that he then himself on her dressed the same part; struggles her her or offered and that he neither paid went out, ' noney. in- she answer admitted, On cross-examination, her that she once she before resent, appeared quiries Bbaesby. Arguments for Appellants. connection with but was suitor in another,
illicit her own at the time she was affianced. to whom She also country put she said to the defendant admitted that when he nothing his arm round about the time he neck; left she went in herself; washed from the room morning she was not asked to for her cars; pay ; lodging did not at once disclose the that she facts; denied them at when first, at the interrogated cars morning as to whether .that she did so stayed him; from an that she still be apprehension might power, upon' assured of she communicated being protection, them imme- *3 after to her German friends. diately Evidence was the defendant given by to show that tending there was no disorder the apartment indicative of any that she resistance; made statements struggle the following inconsistent with the truth of morning the accusation; had more than she with the acquaintance English language and she that the accused himself had professed; borne always character. good The other county judge charged, among things, follows: “If thinks that the defendant took jury into girl up and locked himself with room, her, with intent to have connection she with of that being ignorant intent on his then Tieis cm guilty assault, she pаrt, although home assented to his wishes and to his connec- haring afterwards tion with her? Other of the portions are charge sufficiently in the opinion. stated The found defendant assault guilty and ” in the indictment. charged battery conviction was reversed and a The new trial ordered and a writ error Court, Supreme behalf brought ., of the people.' district W. H. for the Gifford, attorney, People. found the defendant
1. of an assault and guilty the verdict is and sustained fully battery, evidence. is circumstance' or from There it can testimony inferred that she so assented be reasonably defendant’s 528 Bransby.
Arguments for Appellants. conduct as to excuse- and him of the acquit assault battery. assent on her
Any part negatived by testimony all defend- thаt she was when struggled could; asleep ant first seized an entire also, him; her; stranger received no him; pay prostitute. 2. second and third branches judge’s charge contain no such error as or even warrants the requires, reversal of the and the trial. of new judgment granting is evident that the second branch thereof, charge, did not nor was defendant understood, so mean,- he had committed a of an if battery rape. tes-
The third branch—considered connection as it must Scott, Mich., timony, 287), (People reference of the case—is construed with facts based that the defendant fact wrongfully fraudulently, took of his own as to complainant, advantage privilege and of her in the railroad room, sitting company’s passenger she then situation there, being inexperienced ignorant from Ardennes, wholly girl, just unacquainted young to be believing English reasonably language, to have really to follow who defendant, appeared duty *4 in the authority premises. he that when is submitted
Under these circumstances and thus locked the his falsely door, pocket, put key reach and her within power imprisoned putting as he then under his person, proceeded control to outrage he as the same assaulted her, he do; thereby intent attitude with in a threatening were another pmsuing 17.P., Buller’s p. distance. (See strike within striking & P., 3 Car. 373; v. 22 Martin Sheppee, ; [Imprisonment] Smith 7 v. State, Humph., 43.) and of her his situation an
It was such advantage taking an is holden condition defenseless comparatively yesv. The People, anor assault. (See assault and battery, Ha R. & Cas., R., 130; 1 Cro. Br. Rex v. Nichol, 1 Hill, 35; Bbaitsby. 529 v. J. Court, per Poetee, L. & Case, 544; Regina Eng. Eq., Long Rogers, 17 Ala., 540.) is
From the verdict rendered it evident that the were not misled to the assault respect alone, for an rendered verdict assault and they battery.
So if there is error in either or both branches of the will this court it where it judge’s charge, disregard evident, case, defendant could looking through hot have been such The verdict in injured by charge. way arises of such out nor could it have been' charge, influenced and because the verdict by it; rendered is sus- abundantly tained the evidence.
When the motion to quash made, court properly far as so it, question overruled merger concerned; (cid:127) absence could not proof, be determined for, had committed offenseinto which prisoner greater he was for which trial had one put upon It is not merged. to screen himself from right prisoner conviction less that he offense, has by simply claiming committed into which the lesser is greater one, merged. Andrews & for the Sedgwick, Kennedy, defendant in error. testimony complainant artless, Porter, frank and There is an air of truth in ingetiuous. apparent her narration which commends it to belief. strongly If it is to fall entitled accused credit, aof criminal guilty and brutal Her did evidence not establish a outrage. case of it tended to show very aggravated assault. The the conviction difficulty only arises sustaining instruction errоneous that on presiding state judge, of facts which assumed to deducible from the evidence, the defendant be found must if assault, even should arrive at the conclusion that the illicit intercourse *5 - was with the assent of the prosecutrix. the are it is Though probabilities against it, impossible that this their have been conclusion from the may evidence; and the was, judgment therefore, properly reversed, unless Y. 6Y
Tlfeany.—Yol. Bbajstsby. per Court,
Opinion of the Porter, accused was not to infer prejudiced at arewe liberty related to the strictly instruction, erroneous the by from assault lattery as assault, distinguished crime of found he was of which guilty. com- between testimony
There some conflict witnesses. of the defendant’s and that plainant inferences from to draw unfavorable at liberty were perhaps at á late hour of night, security, her place leaving whose stranger, language with perfect company him con- from her understood nor following neither spoke; he herself of the room pro- distance, availing siderable without House, indicating any objection at the Sherman vided to his would seem when her, to occupying from her porter been.unmistakable; permitting have in her- after apart- hall he remained while midnight leave time of at the repeated ment from her .his outcry ; making have been heard such her, might connections rooms; her denial on and from inmates of the adjoining first abused she was when morning following in the her Herman countrymen language, intеrrogated the accused. Her of these facts absence of explanation to the If not 'have been satisfactory jury. or may as to the in the effect of an error charge, hypothetical was, illicit would be But intercourse, immaterial. assent to as the if unsatisfactory jury, explanation is the evidence, assumed it fight might our on the correctness of the to demand in- accused judgment under which he was and on' the further convicted, structions if error, whether tended to his any, may question ultimate result. in the prejudice the counsel for the insisted It is accused first in the two to an charge amounted, substance, propositions if the evidence established instruction him to find authorized the mere misdemeanor werе in the indictment. is true that the words used charged were vague general some sufficiently give plausibility But the proposition. language of the evidence light construed which it was applied. *6 June, 531 People Bbahsby. The J. the per Court,
Opinion Porter, as it would be under- The should he read us instruction by the the and as it is manifest that stood testimony by jury; did did establish case prosecutrix .not the lan- establish reluctance and some resistance, degree should be to facts presented, guage employed applied n not to a of facts which it have state might hypothetical tended to mislead the There no error in this jury. por- tion of if it be as was construed, charge, fairly evidently intended not fail to as could be understood" by judge, those who had heard the by evidence.
The third aof proposition presents judge question much more serious character. assumes she assented to the illicit intercourse makes issue or inno- guilt cence when first aware became depend question his ask the boon she The were granted. instructed, as matter of that if the defendant took law, into the room and locked himself with with intent to her, have connection with his being ignorant intent, then he is of an have assault, although after- wards assented and to his wishes, connection having with her. The Court was Supreme that this right holding a manifest error. legal
It is that the instruction suggested be sustained on might theory consented to the complainant material of illicit point intercourse with the defendant, transaction admitted of and the subdivision, there- jury were, bound as fore, matter of assume, law, locking the door was her will. dSTosuch against legal presumption and if so artificial an exists; inference could be drawn from should been facts, not cited from proposition judge. Buller, im- every includes a prisonment battery, every battery assault, has relation to the forms and averments appropriate civil for false remedy It is imprisonment. wholly inapplicable like to case where present, of the door locking objected a was mere complainant, precau- tion for the of an immoral privacy as the act, which, both the assumes, consented. parties Bbabtsby. per Court, Porter, should as it be construed intended, *7 it was doubtless understood jury. by theory that was, connection vol- judge was though improper of act the defendant used both, neither untary force intended he nor was still a criminal assault, it, she acceded unless to his before she was aware that purpose he entertained it.
A criminal conviction for an assault where cannot be upheld committed, no been none intended has battery attempted, It or threatened accused. party indispensable either violence to the be offered, offense that person menaced designed. that an has been is claimed exception recognized rule the authorities to the
some of application general exists as of cases. such this class No exception particular assault battery. an indictment simple applicable lead to the decisions A at some of might cursory glance exam- on but this disappears particular opposite impression; the nature of the accusation if in view we ination, keep to which respectively and the statutes judges each case, will of the authorities on subject brief review refer. A have stated. with the rule we are in that harmony show they in several instances, question It will observed fraud, of a consent on the procured turned validity to a but supposed committed, not indignity applicable, it. party committing legitimate a conviction Case, it held in RosmsM’s was Thus, his own a man, medical sustained whеre assault could be under the a female patient clothes hands, stripped him to to enable necessary was fraudulent pretense Cases, her Crown 19.) disease. (1 Moody’s where was sustained, a conviction In Case similar’ NichoVs who his indecent liberties female pupils, took teacher (Bussell them. nor resisted assented advances neither & 130.) Byan, prop- held that
In Case, physician Regina girl convicted of debauching erly battery made but connection, did assent to carnal who fourteen, Bbaxsby. Court, per Porter, to his from bona belief he act, resistance was, fide her for her treating medically disorder. represented, on sustained conviction, distinction be- judges actual assent to sexual intercourse, tween and аcquiescence by in an act of the non-resistance, passive physician, nature of which she was &L. (1 ignorant. Eng. Eq., 544.)
In held that a Jackson’s Oase, who had carnal party a married effected his woman, knowledge purpose by her could not be fraudulently husband, personating convicted & (Russell Ryan, rape. 487.) In a similar Sa/ander’s Oase imposition practiced married who woman, consented, supposing party him at once on husband, repelled discovering *8 suicide. fraud, immediately On the attempted trial of Gtubnby for Baron the rape, instructed the party that jury, her consent was procured fraud, the could though prisoner the convicted of not be offense; that he principal would a have bound to direct bеen but for the general acquittal, of 1 ch. statute Viet., 85, a provided such case, by a a conviction for assault simple under an authorizing indict ment the C. felony & charging against person. (8 P., 265.) In Banks’ the was indicted for Oase, prisoner feloniously nine of assaulting debauching girl The act years age. her but there assent; was with was some doubt on her evi- dence as to the consummation of the extreme offense. It the counsel for was insisted if the crown, proof failed to establish felony, prisoner be found might an assault. Justice of held guilty that though Patteeson a child of nine the consent of of was years age unavailing under of defense statute felony was a bar and he assault; instructed the respect un- jury less effected his felonious prisoner purpose, must they him verdict of render The found general acquittal. jury Com. crime. capital (34 Eng. L., 531.) In Meredith’s there were two counts the indict- Oase, one intent to commit a ment for assault with ; rápe, first The count other for common assault. was abandoned; second, claimed on the on the a conviction ground but Beahsby. [Ot. The J, Court, Poster, per of ten that the was between and twelve years girl age, that the hands such a imposition even consented. Lord assault, subsequently that her act fatal Abutgeb held assent to the and instructed a con- to sustain prosecution, viction for below nrnst show felony grade “you assault am, could not he action cm assault which were justified if and lea/oeand license The it, pleaded? prisoner broughtfor Com. L., acquitted. (34 Eng. 539.) accordingly was ten old. Martin's The Oase, In complainant years for an assault indictment contained count with intent and another for mere found assault. debauch her, but that the assented. The was guilty, girl prisoner fifteen for the consideration case was reserved judges; as the child were they unanimously opinion, not an that he have it was assault,” might consented, convicted under the statute which makes indicted and been reference to without carnal consent, it a misdemeanor, ten and twelve of a child between years age, knowledge (38 Com. L., 85.) Eng. v. Read three others, Queen
In case anof on a convicted nine girl yéars defendants were thе, circumstances: defendants under following age to a When first to take hayloft. they began went with girl *9 some showed but event her she with unwillingness, liberties to offer assented. opposition apparently she ceased ually succession, of the connection with defendants, Each “ of the was the child The verdict Guilty, her. being she did not but from tender years an party, assenting and on was reserved, she was about.” case know what all the the conviction was judges being quashed; argument the of was fatal eventual assent girl opinion London Jurist, 68.) (13 objection. that the case of The estab People Hayes
It claimed is found examination will be on different but rule; lished the authorities cited. It it is in above harmony accused convicted of held that the was there properly ten child under intent to commit rape assault Bbajstsby. Court, per of the Poster, whom had for that years into a age, decoyed detected this, while building; though attempt in a state indecent at a distance of five standing exposure feet from her The decision was person. put upon ground that the act he was one of aon child attempting' of an at which under age incapable consent, legal the statute that offense. in deliver- defining Judge Coweít, of the conceded that to ing court, constitute an opinion must be there intention actual violence assault, using (cid:127) If the law were Hill, against (1 otherwise, person.” 351.) seduction and criminal would have been indiсt- conversation able offenses this State from the they always beginning; involve sufficient to constitute an of force degree for the assent battery, except express implied party. In the was an case, adult; present complainant she under labored of not disadvantage speaking the same with the she admits accused, language ingenuously that, knew the nature previous‘misadventure, through of the of the instruction act, assumes is assented. It that there was quite probable really such if there could assent; recover was, against in a defendant civil nor could he be con- action, lawfully victed of a criminal assault. Volenti non injuria. fit We with the court below in concur, therefore, holding third but a instruction of the mem- erroneous; majority bers are of the of this court error could not, opinion of the accused. prejudice possibility, operated in the case convict direction, supposed, pris- oner of an and the fact that he was not assault;. found guilty of the minor but of the assault offense, battery charged is deemed conclusive evidence indictment, verdict was intended to assent to the act on any negative is not It without some hesi- part complainant. have arrived at conclusion. tation that we right claim the of a fair the citizen accused crime to benefit trial and a true and law *10 just applicable exposition in has been When the law such case offense charged. on not mere be assumed should erroneously presented, People Brastsby. of the Court, per Potter, however or that the were probable plausible, speculation, not misled the error of the or .that understood by they judge, in a restrained technical rather than sense, language in when used in a its like con- ordinary popular import But when the form of the nection. as is such finding show error harmless as matter of legal necessity, it is in to correction tribunal. open any appellate
On the court this sole below must ground, judgment and the conviction the Court be of Sessions reversed, ' . affirmed. All the concurred judges opinion foregoing except who read J., same on opinion result reaching Potter, that there was no error ground charge. J. There was no error committed the Court Potter, in their refusal to Sessions the indictment then on quash trial that before cause therein them, ground the crime of This motion was charged merged rape. doubtless on the B. based S., 726 provision (2 [marg. paging], if there be at time the same 42), any pending against § defendant two indictments for the indict- same two offense, ments for the same as different matter, although charged the indictment first found be deemed to offenses, shall .be such second shall be indictment, superseded by quashed.” not for the same two indictments were nor offense; the admission made it does it regard appear two indictments were for the same matter, although charged differеnt offenses.
Had fact the were for the appeared indictments same it is seen that the matter, statute does not declare on the of a second indictment the indictment first finding null shaE be void, is-to It can only quashed. action of the some court. This is contem quashed by clearly has been statute. This plated language question The Court of Sessions but adjudicated. foEowed the views Court in Supreme case of The v. Monroe and Terminer Oyer (20 who said “the time Wend., 108), a court when will entertain a motion indictment quash *11 People Bbansby. 537 The June, 1865.] Opinion Court,per Pottek, of the J. of a exercise sound some discretion.”
rests, upon degree, And further held it to be the true of the construction they “ to the case of an refers made for statute, application before the trial of either has indictment com purpose, “ with clear added, menced could sense, good clearly the intention not have action of the been give grand the second an effect that indictment, would jury, finding * * * trial break first.” “Such pending upon up of the section would view involve folly absurdity be to the of the should not makers law, when effect imputed to it consistent with sound See given principles.” also, v. Rynders People (12 Wend., People v. 425), Barry like If construction. Abb., 228), defendant’s (10 had been. to have come case within the provisions shown and he had made his motion in statute, this reasonable time, to relief. But he was entitled this was not shown. The indictment not second seen court, and there' was evidence felony charged included second, in that on the misdemeanor trial. The charged offensesmay and the have been defendant entirely distinct, punishable for both.
This has been on point seriously urged argument. raised .in the remaining objections, case, doubtless those which the General Term reversed the judgment, are those taken to the of the charge Four jury. of the propositions judge’s charge, only, appear. first and fourth are not to. The second and third excepted prop- ositions are here for charged, review. The only, second is as follows: 2. If this defendant enticed this to the Sher- girl man under the House, belief, did it part,.that and the think, after friendly purpose, found out that he had an unlawful failed view, to make any more resistance than she did, under the fear, belief that farther resistance would the defendant then useless, must be found guilty.”
The defendant had no reason complain part It was more him than he was charge. favorable entitled. This will more and clear appear intelligible
Tifeaot.—.Yol, 68 Y. Bbahsby. Court, per Potter,
reference to the evidence with which this portion connected, without which cannot be duly- This appreciated. reference to the evidence is also important *12 because in circumstances relate to the of which motives parties and as of (complainant matters have defendant) fact, been into the pressed these facts argument. Though we havе to of really do, nothing having disposed have been discussed. I them, yet they remark, regard to I see them, been unable to them anything him will or that make defendant, should help desire to have them reviewed. This then girl, complainant, had arrived at in a Prussia, train recently Syracuse of a at she a cars, and midnight; land, stranger strange ' in a She was without a or even an strange city. friend, call for whom she could assistance. She upon acquaintance, of was without knowledge language people, the use of two or three to call or words, make except upon her even to known She was wants, strangers. dependent her of the customs and observation, habits powers and the aid and acts to make of'others, known by signs, had her own wants. She arrived at her destination for the no further till the She could train proceed day. morning for Geneva. Wearied and should her imme depart fatigued, diate for the and want was oí lodging place night; this, her as well as her instincts, would direct necessity, observation, to her to look to those who assumed be the or officials agents the railroads or hotels. was not, but therefore, strange, for such such to natural, person, condition, most suppose assumed to act that those who such. The agents really were of her satchel and the motion or her taking signal given by to follow,was, declaration on defendant, her, equivalent that he or other authorized porter, part person, or was to conduct her to a whose business duty lodging The defendant knew could not speak she place. English, he was alone. He was for the knew she agent of neither the railroad or the Undér hotels.. of1' pretense a take he took her agency, right satchel and motioned her to which follow, obeyed. Why B basset Potter, Court, per not He had no ? take, should right her but He satchel, taking proper trespass purpose. her had such to invite to follow but signals, him, right, She did him a kind motive. follow about and along at He admission one and could not ob streets. sought place, tain He moved she still He it. followed. took her to on, room in the House; Sherman third engaged story, her a entered with her. He soon brought glass liquor, desired, drink. urged repeatedly n refused to drink. He locked the door tasted, on the. She but pocket; in his he undressed key inside, put himself, did not her to bed. She motioning accept invitation, in a chair the window. He sat down went to bed. in a lost herself She was awakened sleep, stupor *13 his arms her to about force her neck, the bed. striving upon She but he succeeded. If there is in struggled, anything or these facts that render suspicious conduct of impeach or or that excuse complainant, of the defend justify I have not been ant, able to see it. did see not seem to have it; they this duly appreciated regarded evidence. The real and it will be only question, seen, is, did all this constitute an assault and It is clear battery? that it in the tаken did, view jury, yet judge, left in this to implication, jury, proposition, find that all would not an assault and if she battery did not make all the she failure resistance unless the could, to make such extreme resistance was under the or fear, belief that further resistance would be useless. not Such is the law. The in in erred defendant’s this, favor. This judge qualification was calculated it did to, it was favorable to the mislead; too defendant. entirely If the made resistance whatever-—if complainant any when he seized her—if the asleep defendant seized upon her while or in which the evidence asleep state of stupor, and the evidence an on the assault and only subject—it If battery. she- did not consent to his or willingly invite, and to his the сase no' presence conduct furnishes (of he was I evidence), an see assault battery. People y. Bbansby. 540 of App’ls, Opinion, Court, pér Potter, or cause for remarkable defense, elements suspicion, under the circumstances which she was complainant, did not defendant’s bedroom object entering placed, — — that she did not order him to leave the room did not of his con that she protest against impropriety her door and in his duct locking putting key pocket, n —- in her and that room bed, uninvited, going officeto of his did not rush to police complain outrage had no it. her. did not forbid invite, She language in her do these How could one helpless condition, things? than can found for her A more natural rеason depravity the evidence doubtless conduct. thought, instead them that these circumstances, thinking, justifies evidence of her the evidence unchastity, only being which she an infernal defendant, design part or had the and which resist, neither knew how, power It is restraint her a victim. law every made elementary in a under house, one’s custody another, liberty goal, street, is, law, imprisonment; stocks, it is false it is done without whenever proper authority,' And this is commonly joined imprisonment. includes In civil actions, every imprisonment battery. an assault. Bull. Just., 589; every battery (2 battery, Hill, Hays,
N. P., 22; People 351.) of The In the case People Hays prisoner (supra), under ten into a female building years age, decoyed *14 there detected while оf was ravishing her, a few feet of her a state of indecent expos within standing of his that no evidence It held there was ure. of an? convicted touched he was her, actually properly having of The features these intent to commit with rape. assa/uM to the verdict to that similar extent, are (assuming cases, added The was alike, imprisonment being decoying just). 2 Park. an actual also, (See this case, battery proved. to at the in his this trial, charge upon Or., 27.) to the introduced the relation law improperly proposition, of which of cases demanded complainants resistance to a of Although case battery. no application Bbahsby. of the Court, per Pottee, to had no law thus there сase, application charged to committed this no error proposition, prejudice the defendant. of the next is excepted proposition judge’s charge to, think 3. If the that the defendant took this as follows: into the room and locked himself there up girl to have with intent connection with being ignorant that intent on his then he 'is of an part, .guilty assault, to afterwards assented although wishes, to his connection with her.” having I have been unable to detect unsoundness or error in this n to the of the defendant. This instruc-
proposition prejudice of the even if it is tion seen did erroneous, judge, technically not work to the defendant. This of the part any injury charge related to an assardt had no influence the mind only. upon have found the defendant they jury, of assault and offense battery; higher showing they .en- which tirely disregarded speculative theory judge, had no evidence it. which base Whether in really upon criminal that obtains in civil prosecutions proposition' includes a actions, every imprisonment battery, every ' is deem I do not battery assault, applicable, necessary in this If discuss case. the evidence establishes anything, the offense for which defendant was in- establishes'just and which the dicted, have found him guilty.
The General Term have not furnished con- any opinion their reasons for their reversal taining judgment the Gourt of But Sessions. suggestions brief, upon and the authorities lead us to cited, that there suppose another on ground decision, wit, the evidence the trial sustained for much having higher that of offense, wit, rapé, misdemeanor, assault and battery, merged felony. this,
If was the proposition judgment it could not think no reversed, I regarded sound.. case' can be found that goes holding length a trial for a evidence misdemeanor, prove tending *15 that a crime had would be defense been higher committed, Bbansby. Court, per Potter, That all the misdemeanor.' is
to
that can
claimed
to
case.,
been done
on the trial for the
If,
mis
a conviction had been
demeanor,
offered
evidence, showing
the defendant
that for
same act
had once been convicted
a
would have
a different
one
felony,
presented
case,
сalled
we are not now
which
objection
upon
pass.
here
not a
of fact
raised
certainly
question
upon
had
The facts
did not
a
to pass.
present
assumed
decision of
of law for the
The defend
judge.
question
on the
all the
ant had allowed to
him,
trial,
privileges
a
and incident to
trial for the
allowable
misdemeanor
are
than a
He
on trial for
else
misde
nothing
charged.
for
that he
It is
him to
urge,
meanor.
hardly becoming
more
to be
crime,
committed
ought
severely
higher
of this. Such
therefore should
acquitted
punished,
in the case of Commomwealth
presented
argument'
In that case the court used the fol
McPipe (
What the effect of the conviction for misdemeanor present if would bar of indictment for be, also plead I us. now before have been entirely unable question find reason for reversal of this conviction. I good think the Court should be reverséd. judgment Supreme