
    The People of the State of New York, Resp’t, v. Egbert Palmer, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 7, 1887.)
    
    Criminal law—Hew trial.
    Palmer was indicted for assault in the first degree and convicted of assault in the third degree. His counsel having obtained a new trial, now asks that a provision be inserted in the order that he be tried only for assault in the third degree. Held, that such an order might possibly make a question as to the jurisdiction of the court of oyer umer § 56, Code of Grim. Pro., or of any court under _§ 35, Penal Code; that as the case now stands he cannot be harmed. Motion denied.
    Palmer was indicted for assault in the first degree and tried and convicted of assault in the third degree. The general term granted a new trial. Palmer’s counsel claimed that by the verdict he was acquitted of the charge of assault in the first degree and, therefore, could not be tried for that degree in the new trial, but only for assault in the third degree, and this was a motion made by Egbert Palmer’s counsel at the May general term, third department, to amend the order of the general term previously made by inserting therein substantially that the defendant, on the new trial, should be tried only for assault in the third degree, and not in the first degree as charged in the indictment.
    
      S. Crowell, for app’lt; A. Sherman, for resp’t.
   Learned, P. J.

It is not necessary to decide the question whether the defendant on another trial can be lawfully convicted of any higher offense than assault in the third degree. It would seem by analogy to the Dowling Case, that he could not.

But it would not be proper to limit the matter by anything in our order.

This case differs from that of Dowling. In that case there were two counts for distinct crimes. It was therefore possible to direct a new trial on one only. In the present case there were three counts in the indictment, but all for the same offense of assault, and the defendant must be tried upon them.

Whether it will be necessary for him to plead the former trial as an acquittal, or whether the record will show the fact without further pleading, or whether on the trial he can ask the court to direct the jury that he cannot be convicted for any higher offense than assault in the third degree—all these are matters which will be'considered when they arise. There is no doubt that in some way the defendant’s rights in this respect (if his counsel’s position is correct) will be protected.

But an order that tie be tried only for assault in the third degree might possibly make a question as to the jurisdiction of the court of oyer under section 56 Code Criminal Procedure, or of any court, under section 35 of Penal Code. As the order now stands, the defendant cannot be harmed, and the rights of the people are not endangered.

Motion denied.  