
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    May 23, 1904.
    THE PEOPLE v. GABRIELE MAGGIORE.
    (119 App. Div. 284.)
    Assault—Second Degree.
    Evidence given on the trial of an indictment for assault with a loaded pistol considered and judgment of conviction affirmed.
    Appeal by' the defendant, Gabriele Maggiore, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 25th day of February, 1907, convicting the said defendant of the crime of assault in the second degree, and also from an order denying his motion for a new trial, and an order in arrest of judgment.
    
      Charles E. Le Barbier, for the appellant.
    
      E. Crosby Kindleberger, for the respondent.
   Ingraham, J.:

The defendant and one O’Brien were indicted for an assault in the first degree upon one Abraham Weinberg by means of a loaded pistol which was discharged at the said Weinberg. O’Brien pleaded guilty to assault in the third degree. Maggiore was tried and convicted and appeals.

One Weinberg testified that he conducted a candy store at No. 2091 Second avenue, in the city of New York; that the prisoner, about ten o’clock on the night of December 6, 1906, came to the store and bought some cigarettes, and started to leave the store without paying for them; that witness’ wife asked him for the money, whereupon he struck her over the heart and she fell on the floor in a faint, and the prisoner then pushed the complainant out on the street and struck him; that subsequently the prisoner came back with O’Brien about twelve o’clock at night; that O’Brien broke the window of the store and defendant shot four times with a revolver into the store. Subsequently the police appeared and O’Brien and defendant were arrested; that when O’Brien threw the stone that broke the window the witness saw the defendant with a pistol in his hand; that after the window was broken the defendant shot four times into the window. The police found the defendant in an undertaking establishment in the neighborhood.

A police officer testified that he heard four pistol shots and went to complainant’s store and saw the complainant and his wife. The complainant was standing in the doorway leading from the store into the room in the rear, and a closed window opposite the counter was broken; that the complainant’s wife was lying on the floor, and the officer then went to the undertaking shop and found three men in the rear room, one of whom was O’Brien and another the appellant. The complainant then identified the defendant as one of the men.

Another police officer also went to this store after the pistol shots were fired and subsequently assisted the first officer in arresting the defendant.

The defense was an alibi and the defendant denied all the testimony of the complainant and his wife. The case was then submitted to the jury with a charge, to which no exception was taken; every request of the defendant was complied with, and the jury found the defendant guilty of assault in the second degree.

I think there was evidence to sustain this conviction and that there was no error on the trial.

The judgment should, therefore, be affirmed.

Patterson, P. J., McLaughlin, Clarke and Lambert, JJ., concurred.

Judgment and orders affirmed.  