
    The People, Resp’ts, v. James Kennedy et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Criminal law—Mistrial.
    Upon the trial of an indictment, the jury came into court and said they could not agree. The court asked whether they needed further instructions. In reply one juror said: “We all seem to feel that way; there is eight stand for conviction.” Held, that this remark, though made in open court, could not be presumed to have constrained the jurors to an agreement through fear of public opinion, and would not justify a disturbance of the verdict.
    3. Same—Instructions to jury.
    The prisoner’s counsel, before the jury had agreed, and at the evening recess, said he was going to his home in another city, and would not return that night, and asked if he might be heard the next day on any motion which he desired to make. The court replied that he would attend during the evening to receive a verdict, or to answer questions of the jury, and that if the jury agreed, he would only receive their verdict. During the evening, in the absence of the prisoner’s counsel, the court instructed the jury upon the law. Held, no error, within Code Grim. Pro., § 437.
    3. Same—Robbery—Larceny.
    A conviction of the crime of larceny is proper under an indictment charging robbery in the second degree.
    
      Appeal from judgment of conviction of the crime of grand larceny in the first degree under an indictment charging robbery in the second degree.
    
      P. D. Niver, for app’lts; Andrew Hamilton, for resp’ts.
   Landon, J.

The case was given to the jury about four o’clock in the afternoon. A little later 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 was 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 court house, 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 nine 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 Orim. Pro., provides that the jury can be further instructed only “ after notice to the district attorney and to the counsel fur 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 administratian 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. McNeill 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 o| 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 offence which the greater includes. Code Crim. Pro., § 445.

Judgment of conviction and sentence affirmed.

Learned, P. J, and Mayham, J., concur.  