People v. Hunter

282 A.D. 722, 122 N.Y.S.2d 210, 1953 N.Y. App. Div. LEXIS 4796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1953
• Status: Published

Opinion

Defendant appeals from a judgment of the County Court, Suffolk County, convicting him of the crime of assault in the second degree, and from the sentence, and from the order denying his motion for a new trial. Judgment reversed on the law and a new trial ordered. No questions of fact have been presented to or decided by this court. In view of the evidence that the shotgun was discharged into the ground, the jury, under appropriate instructions, might have found that the element of intent referred to in section 242 of the Penal Law was not present but that there was guilt of third degree assault nevertheless. The request to charge different degrees of the crime should have been granted to the extent of charging with respect to assault in the third degree. There was no error in refusing to grant the request to charge that there must be an intent to both wound and inflict grevious bodily harm. No separate appeal lies from the sentence or from the order denying the motion for a new trial, which have been reviewed on the appeal from the judgment. (Code Grim. Pro., § 517.) Nolan, P. J., Carswell, Adel, MaeCrate and Beldock, JJ., concur.