People Ex Rel. Poulos v. McDonnell

96 N.E.2d 614, 302 N.Y. 89, 1951 N.Y. LEXIS 764

• Court: New York Court of Appeals
• Decided: January 11, 1951
• Status: Published

Opinions

Froessel, J.

Relators were indicted by a grand jury of Kings County on three counts:

1. Attempted rape in the first degree;

2. Assault in the second degree with intent to commit rape, and

3. Assault in the second degree with intent to inflict grievous bodily harm.

At the trial, the court dismissed the first count at the end of the People’s case. The jury acquitted relators of counts 2 and 3. Their counsel thereupon moved for their discharge “ on all three counts of the indictment ”, which motion was denied upon the ground that ‘ ‘ there is still pending before the Court a charge of assault in the third degree, which is included within the crimes charged in the indictment by virtue of the Code of Criminal Procedure.” Counsel duly excepted, pointing out to the court that ‘ ‘ there is no information before your Honor and no indictment on assault in the third degree.” The relators were remanded “ for recall for trial when directed ” and bail fixed at $5,000 for each. Habeas corpus proceedings at Special Term were thereupon promptly instituted by relators by reason of their unlawful detention, and after a hearing, the writ was sustained and relators were discharged; the Appellate,Division unanimously affirmed.

Eelators contend that the trial court’s ruling subjects them to double jeopardy in violation of law (N. Y. Const., art. I, § 6; Penal Law, § 32; Code Crim. Pro., § 9). We conclude, as did Special Term and the Appellate Division, that such indeed is the result.

It is the statutory as well as the common-law rule • that a prosecution ought not fail for lack of proof if the crime charged is shown to have been committed in a lesser degree than charged in the indictment; in such case the jury may find a defendant guilty of the lesser degree (Dedieu v. People, 22 N. Y. 178; Penal Law, § 610; Code Crim. Pro., § 444).

In the instant case, the court charged, in accordance with the statute (Code Crim. Pro., § 444), the lesser degree, following its charge on the third count of the indictment. The jury could then have found relators guilty of assault either in the second or third degree; since they did not, but on the contrary acquitted relators of the only counts with which they were charged in the indictment, nothing was left to be tried, and their general verdict constituted a bar to any new indictment or trial “ for the same crime [assault], in any other degree ” (Penal Law, § 32). It was not necessary for the jury to acquit relators of assault in the third degree, with which they were not specifically charged; the statute merely authorised them to find relators guilty of the lesser degree.

It is of course true that an acquittal on one count of an indictment may not be deemed an acquittal on any other count (Code Grim. Pro., § 443-a); but here relators were acquitted on all counts charged in the indictment, and in consequence no charge survived. The court could not revive an indictment that had been disposed of for all purposes, nor could it usurp the functions of a grand jury by finding a new indictment.

It is also true that the indictment might have been amended by the addition of a new count, namely, assault in the third degree, had the statutory procedure been carried out (Code Crim. Pro., §§ 295-j, 295-k), in view of the fact that such count would merely be an inferior degree of the same generic crime with which they were already charged — assault (in the second degree) — or, in the words of the statute, it relates “ to the transaction upon which the defendant stands indicted ” (cf. People v. Miles, 289 N. Y. 360). It does not appear that this was done or even attempted, and the court in effect merely recognized that the third count would sustain a conviction in the lesser degree and charged the jury accordingly. Under such circumstances there can be no question of amendment by implication or waiver (cf. People ex rel. Prince v. Brophy, 273 N. Y. 90), and it is unnecessary to consider what might have been the effect had the indictment been amended to allege an additional count.

Section 32 of the Penal Law is clearly applicable here, and we know of no authority holding contrary to the views herein expressed. As the order appealed from is final, the question certified need not be specifically answered (Civ. Prac. Act, §§ 1262, 1268). Accordingly, the order of the Appellate Division should be affirmed. The question certified is not answered.