
    People v. Kennedy.
    
      (Supreme Court, General Term, Third Department.
    
    September 25, 1890.)
    1. Criminal Law—Misconduct of Jury—Impeachment of Verdict.
    After the jury, in a criminal case, had stated to the court that they could not agree, one of them said that eight stood for conviction, but he was stopped by the judge; and the jury, after retiring for further consideration, found a verdict of guilty. Meld, that the verdict should not be set. aside for such remark, on the ground that it might have constrained some of the jurors to an agreement through fear of public opinion.
    8. Same—Trial—Instructing Jury in Absence of Counsel.
    After the jury in a criminal case had retired to consider their verdict, in the evening, counsel for defendant stated to the court that he was about to go to his home, nine miles distant, and would not return until next morning, and was told by the judge that the court would attend during the evening to receive the verdict and answer the jury, and counsel could make any motion he desired in the morning. Afterwards, during that evening, the jury having come into court and requested instructions, and it appearing that defendant’s counsel had gone to his home, the judge, in his absence, gave them instructions on the points submitted. Meld, that defendant’s counsel had the notice contemplated by Code Grim. Proc. N. Y. § 487, providing that the jury may be further instructed “ after notice to the district attorney and to the counsel for the defendant. ”
    
      ■8. Same—Verdict—Different Crime.
    Under Code Grim. Proc. § 445, providing that the defendant in an indictment for any crime not consisting of degrees “may he found guilty of any crime the commission of which is necessarily included” in that charged, defendant in an indictment for robbery may be convicted of larceny.
    Appeal from court of sessions, Albany county.
    Indictment against James Kennedy and Thomas Bowes for robbery in the second degree. On trial, the jury found them guilty of grand larceny in the first degree. From the judgment of conviction thereon defendants appeal. Code Grim. Proc. FT. V. § 445, provides, as to crimes other than those consisting of different degrees, that “the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      P. D. Niver, for appellants. Andrew Hamilton, for the People.
   Landon, J.

The case was given to the jury about 4’ o’clock in the afternoon. A little loner they came into court, and said they could not agree. The court asked if they wanted any further instructions. One of the jurors then said, “There is eight of us stands for conviction,” and ivas apparently about to speak further when he was stopped by the court. The jury did not ask for instructions, and upon the direction of the court retired to consider further of their verdict. The defendants were indicted for robbery in the second degree. The jury subsequently found them guilty of grand larceny in the. first degree. Counsel for the defendants urges that the remark Of the juror in open court may have, in some way, constrained some of the jurors to an agreement, through fear of public opinion, and thus deprived the defendants of their legal right to the unconstrained deliberation of all the jurors. This is too conjectural, and too lightly supported by probabilities, to justify a disturbance of the verdict.

Before the jury had agreed upon their verdict, and about the hour of the evening recess, the counsel for the defendants stated to the court that he was about going to his home in Cohoes, about nine miles distant from the courthouse, and would not return again until the next morning, and asked if he might then be heard upon any motion he might make. Thereupon the presiding judge stated to him that the court would attend at the court-house during the evening to receive the verdict, and answer the jury, and that, if the jury should agree, all that would be done would be to receive their verdict that evening, and that counsel could make any motion he desired in the morning. The jury came into court about 9 in the evening, and asked instructions. The defendants were present in court, but their counsel was absent. After waiting some time, and it appearing that counsel had left for his home, the court gave the jury instructions upon the points submitted by them, the court directing that exceptions be entered in behalf of the defendants to such instructions. Defendants’ counsel now urges that it was error for the court to give instructions to the jury in his absence. Section 427, Code Grim. Proc., provides that the jury can be further instructed only “after notice to the district attorney and to the counsel for the defendant.” We think the counsel for the defendants had all the notice that he or the defendants were entitled to under the circumstances. He had had express notice that the court would attend during the evening .to answer the jury, but he deliberately absented himself. The section of the Code must have' a reasonable construction, and it would be unreasonable to confer upon counsel ’the power to deprive the court of the right to instruct the jury, and to deprive the jury and the defendants of the benefit of such instructions, and to obstruct the administration of justice, by his deliberate absence after such a notice as was here given. It has been held a sufficient notice, under a like statute, to call the counsel at the court-house door. McNeil v. State, 47 Ala. 498. The defendants’ counsel had notice, and thus the case of People v. Cassiano, 30 Hun, 388, does not apply.

The indictment was for robbery, second degree, and the verdict was grand larceny, first degree. There can be no robbery without,larceny, and hence the accusation of robbery includes that of larceny,—the greater including the less. The facts charged in the,indictment, in support of the accusation, supported both the accusation of robbery in the second degree and grand larceny in the first degree. The verdict was therefore in accordance with the-indictment, and for the minor ofíense which the greater includes. Code Crim. Proc. § 445. Judgment of conviction and sentence affirmed. All con - cur.  