
    The People of the State of New York, Respondent, v. Frank Randazzo, Appellant.
    Fourth Department,
    July 7, 1908.
    Crime — assault — charge—intent to kill.
    Ón a prosecution under an indictment which charges “ assault with a loaded • revolver and firing the same with intent" to kill,” it is nob error to refuse to charge that the jury may find defendant guilty of assault, third degree, since if he fired the shot he was guilty of assault in the first or second degree, and if he'did not fire it he was guilty of no offense under the indictment.
    The question of the intent to kill is for the jury.
    
      Appeal by the defendant, Frank Randazzo, from a judgment of the County Court of Monroe county in favor of the plaintiff, rendered on the 5th day of February, ,1907, convicting the defendant of the crime of assault in the second degree.
    
      William J. Maloney, for the appellant.
    
      Howard H. Widener and Charles B. Bechtold, for the respondent.
   Williams, J.:

The judgment should be affirmed.

The indictment-charged an assault with a loaded revolver, arid firing same with intent to kill, which constituted assault in the first degree. The conviction was of assault in the second degree, whiehwas a like assault, but without intent to kill. There was consider able conflict in the evidence as to whether the defendant fired the .shot.which took effect upon the complainant. It seems to me, howev.er, that there was a large preponderance of evidence that the shot was fired by defendant, and that the jury might well be satisfied of that fact beyond a reasonable dotibt, and were fully justified in rendering the verdict they did. They might véry properly have believed and found the intent to kill existed also, and have convicted 'of the higher degree of assault, first degree, but they were empowered to pass upon the question, arid .very likely had a reasonable doubt as to whether the intent to kill was present.

It is' not improbable that the jury preferred to convict of the lesser offense so as to make the punishment lighter. It was their responsibility and not the court’s.

There are no exceptions which call for special consideration except perhaps one, the refusal by the court to charge the jury that they might convict of assault in the third degree- and-the remark by the court that there was no evidence in the case which would justify such a verdict. This remark was entirely correct. The defendant, if he fired the shot, was guilty of assault in the first or second degree. If he did not fire it he was guilty of no offense under the indictment. The court was, therefore, justified in the refusal to charge as requested. (People v. De Garmo, 73 App. Div. 46.) That case was decided in this department^ and seems to ■ be' in point here.

There were no reversible errors committed by the court.

All concurred.

Judgment of conviction affirmed. 
      
      See Penal Code, §§ 217, 218.— [Rep,
     