
    In the Matter of Carlton Gilchrist, Petitioner, v. County Court, Erie County, et al., Respondents.
   Petition granted and writ issued, without costs. All concur. Memorandum: The defendant was tried in the City Court of Buffalo upon a charge of violating chapter IS, section 24, of the Buffalo City Ordinance in that he resisted an officer in the discharge of his regular duty. The information alleged two acts of resistance; one occurred at the place where he was arrested for a traffic violation; the second act was alleged to have occurred in the station house where, it is alleged, he also resisted and in doing so knocked Patrolman Kean to the floor. The Trial Judge found him guilty of the first act and there is no dispute between the parties that this conviction was valid. He made no determination as to the second act. However, there was testimony as to the second offense and the Trial Judge had the case .before him for decision and therefore the defendant was in jeopardy for the second act. The present indictment for assault, second degree, is predicated upon the same acts which were included in the second alleged offense upon which defendant was previously tried. “All of the evidence necessary to convict in the second offense was admissible under the first charge ” (Matter of Martinis v. Supreme Ct., 20 A D 2d 79, 84); “No person shall 'be subject to be twice put in jeopardy for the same offense (N. Y. S. Const, art. I, § 6.) To permit a trial upon the present indictment would constitute placing defendant in double jeopardy in violation of his constitutional rights. (Application to restrain respondents from continuing with proceedings on indictment and to dismiss the indictment.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Yecchio, JJ.  