
    SUPREME COURT-APP. DIVISION-FOURTH DEP.,
    July 7, 1908.
    THE PEOPLE v. FRANK RANDAZZO.
    (127 App. Div. 824.)
    Assault—Trial—Charge—Intent to Kill.
    On a prosecution under an indictment which charges “ assault with a loaded revolver and firing the same with intent to kill, ” it is not error to refuse to charge that the jury may find defendant guilty of assault, third degree, since if he fired the shot he was guilty of assault in the first or second degree, and if he did not fire it he was guilty of no offense under the indictment.
    The question of the intent to kill is for the jury.
    Appeal by the defendant, Frank Eandazzo, from a judgment of the County Court of Monroe county in favor of the plaintiff, rendered on the 5th day of February 1907, convicting the defendant of the crime of assault in the second degree.
    
      William J. Maloney, for the appellant.
    
      Howard II. Widener and Charles B. Bechtold, for the respondent.
   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 a like 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 higher degree of assault, 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 lie 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. DeGarmo, 73 App. Div. 46.) That case was decided in this department, and seems to be in point hero.

There were no reversible errors committed by the court.

All concurred.

Judgment of conviction affirmed. 
      
       See Penal Code, §§ 217, 218.—[Rep.—Case affirmed 194 N. Y. 147.]
     