
    The People of the State of New York, Respondent, v. George Shaffer, Appellant.
    Third Department,
    May 3, 1916.
    Crime - - assault provoked by complainant — excessive sentence — evidence.
    Where defendant was convicted of assault in the third degree provoked by the complainant, but no one was injured, a sentence for a term of six months in the penitentiary is excessive.
    Verdict held to be against the weight of the evidence.
    
      Appeal by the defendant, George Shaffer, from a judgment of the County Court of Broome county, rendered against him on the 5th day of April, 1915, affirming a judgment of a Justice’s Court of the town of Union, Broome county, rendered against him on the 24th day of March, 1914, convicting him of the crime of assault in the third degree.
    
      Robert S. Parsons [Robert 8. Wickham of counsel], for the appellant.
    
      Urbane C. Lyons, District Attorney [Charles H. Burnett with him on the brief], for the respondent.
   Woodward, J.:

The defendant in this action has been convicted of a charge of assault in the third degree and sentenced to a term of six months in the penitentiary. The complaining witness appears to have assumed to interfere in the relations between the defendant and the family of one Lou Le Grand, and to have invited a quarrel in which it is alleged that the defendant threatened to do violence to the complaining witness if he did not desist from such interference. No one was injured in the alleged assault, which was clearly provoked by the complaining witness, and the sentence of the Justice’s Court, affirmed without opinion in the County Court of Broome county, seems to us to he, as pointed out by Mr. Justice McCann, in granting a certificate of reasonable doubt, not only unsupported by sufficient evidence, but excessive. The case is unattractive in details, and in view of the discussion of a kindred question in People v. Miles (173 App. Div. 179), decided at this term, it does not appear important to enter into the question farther. The sentence is excessive; it bears no j ust relation to the facts proved; the verdict was against the weight of evidence, and the judgment of the County Court and of the Justice’s Court should be reversed and a new trial granted.

All concurred; Cochrane, J., in result in an opinion; Lyon, J., not sitting.

Cochrane, J. (concurring in result) :

Tf the sentence was excessive it should have been -modified by the County Court (Code Crim. Proc. § 764; People v. McIntosh, 5 N. Y. Cr. Rep. 38; People v. Starks, 17 N. Y. St. Repr. 234), and I see no reason why this court may not now make the modification of the sentence which should have been made by the County Court without granting a new trial if the verdict of the jury was properly reached. But the crime alleged in the information before the justice of the peace is not sustained by the evidence, and for that reason I concur in the reversal of the judgment.

Judgment of conviction of the County Court and of the Justice’s Court reversed, and a new trial granted before a justice at a time and place to be designated in the order. Order to be settled before Woodward, J.  