
    PEOPLE v. RANDAZZO.
    (127 App. Div. 824.)
    (Supreme Court, Appellate Division, Fourth Department.
    July 7, 1908.)
    1. Indictment and Information — Conviction of Offense Included in Charge.
    The jury, on a trial on an indictment charging an assault with a loaded pistol and firing the same with intent to kill, may pass on the question of accused’s intent to kill, and, on having a reasonable doubt as to whether such existed, they may convict of assault in the second degree, though they might have found such intent and convicted of assault in the first degree.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 585-590.]
    2. Homicide—Assault—Degrees—Evidence.
    Where, on a trial for assault in the first degree, accused if he fired the shot was guilty of assault in the first or second degrees, and was not guilty if he did not fire the shot, the refusal to charge on assault in the third degree, followed by the statement that there was no evidence justifying a conviction of assault in the third degree, was proper.
    [Ed. Note.—For cases in poin;. see Cent. Dig. vol. 26, Homicide, § 658.]
    Appeal from Trial Term, Monroe County.
    Frank Randazzo was convicted of assault in the second degree, and he appeals.
    Affirmed.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
    William J. Maloney, for appellant.
    Howard H. Widener and Charles B. Bechtold, for the People.
   WILLIAMS, J.

The judgment should be affirmed. The indictment charged an assault with a loaded revolver and firing same with intent to kill, which constituted assault in the first degree. The conviction was of assault in the second degree, which was alike assault, but without intent to kill. There was considerable conflict in the evidence as to whether the defendant fired the shot which took effect upon the complainant. It seems to me, however, that there was a large preponderance of evidence that the shot was fired by defendant, and that the jury might well be satisfied of that fact beyond a reasonable doubt, and were fully justified in rendering the verdict they did. They might very properly have believed and found the intent to kill existed also, and have convicted of the hig’her degree of assault in the first degree; but they were empowered to pass upon the question, and very likely had a reasonable doubt as to whether the intent to kill was present. It is not improbable that the jury preferred to convict of the lesser offense, so as to make the punishment lighter. It was their responsibility, and not the court’s.

There are no exceptions which call for special consideration, except perhaps one—the refusal by the court to charge the jury that they might convict of assault in the third degree, and the remark by the court that there was no evidence in the case which would justify such a verdict. This remark was entirely correct. The defendant, if he fired the shot, was guilty of assault in the first or second degree. If he did not fire it, he was guilty of no offense under the indictment. The court was, therefore, justified in the refusal to charge as requested. People v. De Garmo, 73 App. Div. 46, 76 N. Y. Supp. 477. This case was decided in this department, and seems to be in point here. There were no reversible errors committed by the court.

Judgment of conviction, affirmed. All concur.  