
    EDWARD MURPHY, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.
    
      Bobbery —trial for — less offense — bhar.ge—when erroneous.
    
    The plaintiff in error was tried and convicted upon an indictment for robbery in the first degree. Upon the trial testimony was given by the prisoner, which, if believed, would have acquitted him of robbery, but would have justified a conviction for a less offense. The prisoner’s counsel requested the court to charge the jury that they could render a verdict of guilty of larceny from the person, or of an assault and battery. The court charged: “ It is in your power to find this man guilty of arson in setting fire to the City Hall. You are only to find sucha verdict as the facts that have been proved before you will justify.” Held, that as this was in effect a charge that the jury could not legally find him guilty of the specified offenses, it was erroneous, and that a new trial should be ordered.
    Writ of error to the Court of Greneral Sessions of the city and county of Hew York, to review the conviction and sentence of the plaintiff in error for robbery in the first degree.
    
      Wm. F. Howe, for the plaintiff in error.
    
      B. K. Phelps, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was indicted for robbery in the first degree, in feloniously taking, by force and violence, from the person of the complainant, a valise and its contents. The evidence on the part of the prosecution tended to establish very clearly the alleged offense, but the prisoner on his own behalf gave testimony which, if believed by the jury to be true, would have .acquitted him of robbery, but justified a conviction for a less offense.

At the close of the charge, to which no exceptions were taken, the counsel for the prisoner requested the court tc charge the jury that they can render a verdict of guilty of larceny from thé person, or of an assault and battery,” to which request the learned recorder responded by saying: “It is in your power -to find this man guilty of arson in setting fire to the City Hall. You are only to find such a verdict as the facts that have been proved before you will justify.”

To this charge the counsel for the prisoner excepted. It was the obvious purpose of the counsel for the prisoner, by his request, to call out instructions that, under the indictment in the case, the prisoner could be lawfully convicted of larceny from the person, or of assault and battery, if the jury found the facts of the case to be such as to call for such a conviction at their hands. It was as to the legal right of the jury, that he desired them to be charged, and not as to their physical power, regardless of legal right. We think the propositions of law involved in the request were sound. The robbery charged embraced larceny from the person,” because if there had been an actual felonious taking, not accompanied with the force and violence, or the fear of immediate injury to the person, necessary to constitute robbery, the crime would drop in grade to the less heinous offense of larceny; or if the taking of the valise by personal violence were found, but without intent to steal, the offense might fall still further into the misdemeanor of assault and battery. The indictment embraced' these several ingredients, which, together, constituted the charge of robbery, and the evidence covered the whole ground, so that all of the essentials of the highest offense were necessarily within the scope of consideration by the jury; but inasmuch as the prisoner’s own testimony denied all intent to steal, without denying some degree of violence in attempting to take possession of the valise against the complainant’s will, and as it cannot be said that the jury had no right to believe his version of the transaction, it follows that it was within their legal power to find that the offense committed was of no higher grade than of assault and battery. A verdict for that misdemeanor would, therefore, have been lawful, however unreasonable it might appear.

There was no exception to the refusal to charge as requested, and, in one view, the omission to take such an exception might be said to operate as a waiver of all error in not so charging. The ¡xeeption was only to the charge as given. But in this case, we ;hink the charge as given must be read in connection with the •equest, in order to reach the sense in which it was doubtless taken md understood by the jury. The request was, in substance, that, mder the indictment, the jury had lawful power to convict of he lesser offenses. The charge was an emphatic negation of the lavjful power by a positive assertion of the physical power to do an unlawful act, in such phrase as at once to impress a juror’s mind with the absurdity and illegality of exercising such physical power. When requested to charge that there might be, lawfully, a conviction of larceny or assault and battery, the court says to the jury: “It is in your power to find this man guilty of arson in setting fire to the City Hall. You are only to find such verdict as the facts that are proven before you will justify.” Few jurors, unfamiliar with legal learning, would fail to understand the court as meaning to assert: you can do such monstrous things as to convict this prisoner of arson in setting fire to the City Hall, and it would be equally monstrous to convict of the requested offenses; but your duty is to convict or acquit of the crime of robbery. It was erroneous to say to the jury that they had power to convict of the supposed arson, and it cannot, therefore, be supposed that the learned recorder meant to assert any such thing as a legal proposition. It must be deemed, therefore, that he intended, by putting before the jury an imaginary exercise of their physical power, so striking and repulsive to all notions of. propriety, that they would clearly see and shrink from a similar abuse of theii functions, by finding no such verdict as the request to charge supposed they might or could find. It is true, it is very easy, b) technical construction and subtle reasoning, to reach contrary viewt as to the charge and the effect of the exception to it, but we fee bound to regard it as we think the jury must have done, and t< consider it, therefore, as a charge adverse to the requests, an< therefore legally injurious to the prisoner.

In this view, the exception raises substantially the question whether it was right to refuse to charge as requested. It ha already been shown that it was not, and therefore, as the plaintii in error has been deprived of a legal right which might possibl; have resulted to his advantage, we are bound to reverse the con viction, however just it may seem upon the whole case.

Judgment and conviction reversed, and new trial ordered.

Danie-ls and Barrett, JJ., concurred.

Judgment and conviction reversed, and new trial ordered.  