
    The People of the State of New York, Respondent, v. Charles Wein and Samuel Wein, Appellants.
    Second Department,
    April 15, 1921.
    Crimes — information charging assault in third degree — conviction of disorderly conduct—■ Code of Criminal Procedure, section 446, applicable to prosecution by information — disorderly conduct included in assault — jurisdiction not lost by dismissal of assault charge.
    Section 445 of the Code of Criminal Procedure, providing, in effect, that under an indictment the defendant may be convicted of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, is applicable to prosecutions by information. Disorderly conduct as defined by section 720 of the Penal Law is included within the crime of assault in the third degree, and, therefore, one charged in an information with assault in the third degree may be convicted of the crime of disorderly conduct.
    The court did not lose jurisdiction of the case by dismissing the assault charge.
    Appeal by the defendants, Charles Wein and another, from an order of the County Court of the county of Westchester, entered in the office of the clerk of said county on the 8th day of December, 1919, affirming a judgment of a Court of Special Sessions before Malcom Merritt, assistant police justice of the village of Port Chester, rendered on'the 14th day of August, 1919, convicting the defendants of the crime of disorderly conduct and fining each five dollars.
    
      Benjamin I. Taylor, for the appellants.
    
      Lee Parsons Davis, District Attorney (Arthur Rowland, Assistant District Attorney, with him on the brief], for the respondent.
   Putnam, J.:

The information charged defendants with the crime of assault in the third degree. The justice (sitting as a Court of Special Sessions) at the close dismissed the charge of assault, but found defendants guilty of disorderly conduct, and imposed a fine.

Defendants have raised the point that disorderly conduct is not a degree of assault, but is a separate and distinct offense, and not a crime necessarily included in that charged in the information. (See People v. Adams, 52 Mich. 24.)

Assault in the third degree is committing an assault not amounting to assault in the first or second degree. (See Penal Law, § 244.)

The crime of disorderly conduct of which defendants were found guilty, is thus defined: “Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place * * *, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor.” (Penal Law, § 720.)

Under an indictment, one may be convicted of any crime, the commission of which is necessarily included in that with which he is charged in the indictment; that is, a constituent offense. (Code Crim. Proc. § 445; People v. Colburn, 162 App. Div. 651.)

It has not before been questioned that the provisions of section 445 of the Code of Criminal Procedure also apply to prosecutions by an information. The information performs the same office as an indictment in a superior court. (Shappee v. Curtis, 142 App. Div. 155.)

No new rule of law was established when section 445 of the Code of Criminal Procedure was enacted. (See 2 R. S. 702, § 27, regarding different degrees of same offense; now Code Crim. Proc. § 444.) These sections are declaratory of the common law. (People v. Miller, 143 App. Div. 251; affd., 202 N. Y. 618.)

. The facts alleged in the information would constitute the crime of disorderly conduct. They were sufficient to sustain a conviction for such offense. (People v. Miller, 143 App. Div. 251.) The argument that the court here lost jurisdiction by dismissal of the assault charge is of no merit. It is elementary that a finding of a lesser offense operates of itself as an acquittal of the higher offense. (Whart. Grim. Law, § 33.)

I, therefore, advise that this conviction for disorderly conduct be affirmed.

Mills, Rich, Blackmar and Kelly, JJ., concur.

Judgment of conviction of the County Court of Westchester county affirmed.  