
    (October 6, 1939.)
    The People op the State op New York, Respondent, v. John Mieske, Joseph Parchuk, Joseph Silcock, Stanley Kosnick and Harold Fistere, Appellants.
    
    
      
       Transferred from Third Department. (257 App. Div. 1066.) — [Rep.
    
   Judgment of conviction modified by reducing the sentence of each defendant to the time he has served in the Columbia County Jail and as so modified the judgment, together with the order, is affirmed. Memorandum: When the defendants were tried upon an indictment charging a misdemeanor the law permitted only twelve jurors to be chosen and sworn. However, two alternate jurors were sworn. Before the alternates were permitted to mingle with the other jurors, the court directed the jurors not to discuss the evidence or form or express any opinion as to the merits of the case until it was finally submitted to them. The jury was in charge of officers whose duty it was to see that the instructions of the court were obeyed. When the case was finally submitted to the jury, the alternate jurors were excused and did not participate in the deliberation of the jury. The fact that the two alternates were sworn did not influence the verdict of the jury in any respect and the rights of the defendants were not prejudiced thereby. Furthermore, the defendants did not object to the selection of two additional jurors and did not at any time request that they be discharged. The defendants must be deemed to have waived the right to object to the selection and service of the alternate jurors. Upon a review of the evidence we are of the opinion that the sentences imposed are excessive. All concur, except Crosby, J., who dissents and votes for reversal on the ground that the inclusion of the two extra jurors with the jury was prejudicial error. (The judgment convicts each defendant of the crime of assault, third degree. The order denies motions for a new trial.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.  