Bocees J.
The defendant was indicted for an assault in the first degree, committed on one Ira Gay. The indictment contained three counts, in each of which it was charged, with slight variations of language, that the defendant willfully and feloniously made an assault upon Gay, and discharged a loaded pistol, being a deadly weapon and likely to produce death—in the first and third counts—with intent to kill Gay, and in the second, with intent to commit a felony upon his person. A demurrer to the indictment having been overruled, the defendant entered a plea of not guilty.
On the trial in the court of sessions, to which the case was sent by the Oyer, when the indictment was found, the defendant was convicted of assault in the third degree; whereupon he moved for a new trial on the minutes of the court, also in arrest of judgment. These motions were denied, and he was sentenced to imprisonment in the Penitentiary for one year and to pay a fine of $ 250. From such conviction and judgment the defendant appealed to this court.
[103]*103No point of error is here made by the defendant’s counsel on the overruling of the demurrer, nor on the denial of the motion in arrest of judgment. The errors complained of are such as appear on exceptions taken and entered on trial. These and these only will be here examined.
The facts of the case, briefly stated, are as follow: The defendant and Gay were gambling in a tavern bar-room, where a dispute arose between them and both clutched for the stake money—Gay got it; whereupon the defendant struck Gay in the face : immediately following which a glass tumbler was thrown at the defendant by Gay and either just before or directly following this, the defendant drew and discharged his pistol. The pistol was twice discharged. Gay claimed that he was hit slightly on the head by the first discharge. By the second discharge the defendant was himself hit in the leg. This shot may have been accidental, with no intent to shoot Gay. When the first discharge was made Gay was approaching the defendant— rushing upon him, as his counsel put it—the latter retreating backwards with pistol in hand, warning Gay to keep away. Such are the leading facts, given quite in detail by the witnesses, with perhaps some variation one with another, not, however, greatly conflicting in their statements.
First—The verdict of the jury was guilty of assault in the third degree. This verdict in legal effect acquitted the defendant of assault in the first degree, to wit: of an assault with intent to kill Gay or to commit a felony upon his person. Guenther v. People, 24 N. Y., 100 ; People v. Dowling, 84 N. Y., 478: and such verdict was authorized under section 444, of the Code of Criminal Procedure, which provides that “ upon an indictment for crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.”
It is urged that to uphold a conviction for a lesser degree of crime than that charged in the indictment, it must be for the identical act alleged therein. The law is this, that the ac[104]*104cused cannot be convicted of any other character of offense than that charged against him in the indictment (Didieu v. People, 22 N. Y. 178; Keefe v. People, 40 N. Y. 348); but he may be convicted of an inferior grade of the same offense charged, growing out of the same transaction counted on, accordingly as the case may be disclosed by the proof. As said in one of the cases cited, “ so far “as the proof goes, it conforms to the allegations. Simply, the whole indictment is not proved, but the principle applies that it is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified.” So here the defendant might be convicted of any degree of assault inferior to that charged in the indictment, the grade of offense to be determined by the proof. An assault was charged with aggravation. Failing to prove the aggravation left the charge of assault still remaining but of lesser degree of offense. To uphold a conviction for the inferior degree the aggravating circumstances charged will be deemed surplusage. It was therefore competent for the jury under the indictment in this case to convict the defendant of assault in the third degree.
Second. It is in the next place urged that the court of Oyer and Terminer in which the indictment was found had no jurisdiction over the offense of which the defendant was convicted; and that the conviction for that offense in the court of sessions was also without authority and void. This objection is based on section 56 of the Code of Criminal Procedure, which provides that, “ subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and courts of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, asfollows : * * 2. Assault in the third degree.” The limitation here declared applies to cases when the complaint or charge is made to the court of special sessions in the fiirst instance ; that is, when this minor offense is that which is sought to be redressed : and so too when the minor offense is sought to be [105]*105redressed by indictment for it in the Oyer or sessions (not having been certified there under sec. 57. Code Grim. Pro.), the subject would be, by the grand jury or by the court in giving direction to that body, turned over to the court of special sessions ; which court has exclusive jurisdiction of it on such complaint in the first instance. But if the complaint be for a higher offense and it be sustained by indictment, then the Oyer and court of sessions, in case the indictment be found in the latter court, or be sent there by the Oyer, would have jurisdiction, and section 444 of the Code of Criminal Procedure, which authorizes a conviction for an offense inferior in degree to that charged in the indictment, would apply. This construction harmonizes the two sections, 56 and 444, above cited and gives effect to each; and it must be accepted in preference to that construction which would render either nugatory in whole or part. It also recognizes, as effective, section 445 of the Code of Criminal Procedure, which declares that, “ In all other cases ’’(cases other than those specified in section 444) “ the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment; ” and also section 35 of the Penal Code which declares that “ upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, ” etc., nor in this connection should section 36 of the Penal Code be overlooked, which declares that, “ when the prisoner is acquitted or convicted upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree,” etc. Thus in this case, unless the defendant may be held to punishment on the verdict here rendered, he must go free and unpunished for the offense of which he is convicted. Our conclusion therefore is; that the verdict rendered in this case is not without authority and void for want of jurisdiction in the court of sessions to receive it and make it the basis of punishment if upheld as provided by law, as to which see hereafter.
Third. It appears that during the trial the defendant [106]*106asked, that the jury be permitted to view the place where the crime was charged to have been committed, as provided for in section 411 of the Code of Criminal Procedure. No objection on the part of the people was made and the court allowed the jury to make view as was requested. The defendant thereupon requested that he, with his counsel, be allowed to accompany the jury. This request was denied, the judge holding that he would allow only the two officers, himself and the jury to go. Under such holding the view was made by the jury, under the charge of two officers sworn for the purpose, accompanied by the county judge. The point of exception as made in the appeal-book is this: that the defendant, with his counsel was not permitted to accompany the judge and jury. It may be conceded that the proceeding to make view was not strictly a proceeding in court. This is, I think, fairly inferable from the language of the section itself permitting it, as also from the following section, 412. See also subd. 2, of section 465. But this conclusion does not reach and answer the objection urged. The proceeding was the obtaining of evidence in the case and a presentation of it to the jury during the trial, hence, in effect, was part of the trial. The view is referred to as “ evidence ” in the sub-division of section 465, above cited, and it was put in as evidence for the consideration of the jury and to influence this action in the determination of the case. So it must be deemed “ evidence ” in the nature of things. See Eastwood v. People, 3 Park, Cr. Rep. on page 53; also West v. Kierstead, 15 W. Dig. 549. On this point I differ from Shaler v. State, 105 Indiana, 289, and the cases there cited in its support; and concur in those holding to the contrary also there cited, to which latter cases attention is called. It must be held, as I think, that the making view by the jury was part of the trial in so far as it involved the right of the defendant to be present when “ evidence ” is given or is obtained for use in the case. So the defendant had the right to be present when evidence was put in or laid before the jury touching his guilt or innocence. This is secured to him by law. Code of Crim.' Pro., section 356; [107]*107also subd. 3, of section 8: see also section 6, of art. 1, of State constitution.
But irrespective of the provisions of the Code and constitution above referred to, the right of the defendant to accompany the jury existed on general principles applicable to the trial of causes in the admission of evidence. The defendant might object to the introduction of a diagram as evidence unless verified in its correctness and put before the jury in his presence or in open court; and this for the reason that he should have opportunity to show by proof that it was incorrect, defective or misleading. So here he should be allowed to be present when the judge or juror appointed for the purpose pointed out the place to the jury, to the end that he might, if needful, correct any error in that regard by proof to be submitted to the jury, showing the error or perchance changes and alterations made subsequent to the transaction under investigation. Thus, according to the general rule of right applicable to the admission of evidence, the defendant should be' allowed to attend the jury when making view; not for the purpose of then and there raising objections or making any suggestions, but to the end that he might correct by proof in court any misleading fact, if any should exist, growing out of the view by the jury.
It follows that the court was in error in refusing to permit the defendant, with his counsel, to accompany the jury when making view of the place where the alleged offense was committed ; and for this error the conviction and judgment must be reversed.
Fourth. I am also of the opinion that there was error in the sentence. The sentence here pronounced was authorized by section 15 of the Penal Code, in case there was no other punishment for this offense—assault in the third degree— specially prescribed by any other statutory provision in force at the time of the conviction and sentence; but there was another punishment for this offense prescribed by a statutory provision then in force, to wit; that prescribed by section 717 of the Code of Criminal Procedure. By this section the [108]*108fine was limited to fifty dollars and the imprisonment to six months. That this section has special application to courts of special sessions, does not alter the fact that punishment for this offense—assault in the third degree—is specially prescribed by a statutory provision in force at the time, other than that declared in section 15. Section 717 should be held to control the sentence; and this on a question of construction of statutes, should be so held for the sake of uniformity and harmony, in the administration of justice. To permit the punishment for the same offence to differ in severity accordingly as the conviction should be had in different courts, is repugnant to one’s sense of propriety and right.
Perhaps this error might be corrected on appeal under section 543 of the Code of Criminal Procedure. I think otherwise, however, as the extent of punishment rests with the trial court. But as there must be a reversal of the conviction for the reason above suggested, this point need not be here determined.
Fifth. But I am of the opinion that the defendant must be discharged.
The verdict in this case operated as an acquittal of the defendant of the higher offenses charged in the indictment; People v. Dowling, 84 N. Y., 478; and in case the judgment be reversed and a new trial be granted, the defendant could not, as the law was then declared, which was before the criminal codes went into effect, be again tried and convicted of those higher offenses. As to them, autrefois acquit would be a good defense. This is decided in the case above cited: and the new trial could be only for the lesser offense—here assault in the third degree. But it is now provided by section 36 of the Penal Code that, “ when a prisoner is acquitted or convicted, upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime, in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.” Now here the defendant has been acquitted of the higher crimes, charged in the indictment—hence, he cannot, according to this section, be tried for [109]*109those crimes “ in any other degree.” Ita est seripta. In this connection section 544 of the Code of Criminal Procedure should be noticed; which provides that “ when a new trial is ordered it shall proceed in all respects as if no trial had been had.” But here, according to section 36 of the Penal Code, above cited, a new trial should not be—indeed cannot be legally ordered. Section 544 applies to those cases when a new trial may properly be ordered. In passing it may be well to remark that section 464 of the Code of Criminal Procedure, which provides that “ the granting of a new trial places the parties in the same position as if no trial had been had,” etc., has no application to cases brought before this court on appeal. That section applies to new trials granted by the court in which the former trial was had and the application for such new trial must be made before judgment, except in a case of sentence of death. Section 462 to section 466, inclusive, Code of Criminal Procedure. Thus it seems that section 36 of the Penal Code is left in full vigor according to its text. It follows that the acquittal of the defendant of the higher offense charged in the indictment disposes of the case; a reversal being ordered leaves nothing on the record against him for re-trial.
In any event the defendant could only be held to a re-trial for assault in the third degree even if section 36 of the Penal Code was out of the way, and effect should be claimed for section 544 of the Code of Criminal Procedure. It was so held in the People v. Gilmore, 4 Cal., 376. The Criminal Code of the State of California provided, as does our section 544 above cited, that the granting of a new trial placed the parties in the same position as if no trial had been had. It was urged in the case cited, that this provision—a new trial being granted—opened the entire charges in the indictment for re-trial, as well those as to which there had been an acquittal as to those on which there had been a conviction. The court held against this contention. It held that such provision went only to the needs of the defendant as against the conviction; that if it should be construed to be more extensive in its application and effect, then it would be in conflict [110]*110with the constitution, which protects one from being twice put in jeopardy for the same offense : and further, that an appeal or motion for a new trial would not operate as a voluntary waiver by the defendant of his constitutional protection as to those charges as to which he had been acquitted; to the same effect is the decision in the People v. Dowling, 84 N. Y., 478„ 483-4. Judge Folger says the waiver of constitutional protection, “ unless it be expressly of the benefit of the verdict of acquittal, goes no further than the accused himself extends it. His- application for a correction of the verdict is not to be taken as more extensive than his needs. He asks a correction of so much of the judgment as convicted him of guilt. He is not to be supposed to ask correction or reversal of so much of it as acquitted him of offense. He therefore waives his privilege as to one, and keeps it as to the other... The waiver is construed to extend only to the precise thing concerning which the relief is sought.” In this casé the defendant has expressly limited the relief sought, by his notice of appeal which goes only to the conviction of assault in the 'third degree, leaving the acquittal of the higher offense uncomplained of and untouched. Thus, section 544 would be held to be unconstitutional and void, if by its terms it extended to the acquittal in this case. In no view of the case can the defendant be held to a re-trial save for an assault in the third degree.
I am, however, of the opinion "that he is entitled to be discharged by force of section 46 of the Penal Code above cited.
As I conclude, this conviction and judgment should be reversed, and the defendant discharged.
Learned, P. J.
The Constitution says that “ in any trial in any -court whatever, the party accused shall be allowed to appear and defend in person and with counsel as in civil actions.” Const., art. 1, sect. 3.
This gives him a right to appear and defend in person and with counsel in every part of the trial. It forbids the hearing by the jury of any evidence in the absence of himself and his counsel, without his consent.
[111]*111This right is again stated in section 8, Code Crim. Procedure. And probably no one could doubt that to give-evidence to a jury, in the absence of a prisoner and without his consent, would violate the constitution, and that a verdict so obtained could not stand.
Then the question is : was evidence given to the jury in this case, in the absence of the prisoner ?
One member of the court and two officers, sworn according to section 412 of that Code, went out from the court room. The two other members of the court and the prisoner and his counsel remained. The prisoner asked to accompany the jury but this was refused. On returning, the member of the court who had gone with them stated that the jury had been up to the place, store or saloon of the Hallenbeck Brothers ; that all places mentioned by counsel had been examined by the jury; that the jury had not been allowed to communicate with one another or hold any conversation with any person outside.
The view of the place was itself evidence. It might be very important for the jury to know the size of the room. For instance, the defendant might have testified that the room was not more than ten feet long and that the complainant, standing at one end bad struck with a stick the defendant standing at the other. The jury may have been shown a room twenty feet long. And the length of the room would tend to discredit defendant’s- testimony and would be material evidence whether the affray arose as defendant claimed.
It is not an answer to this argument to say that there could be no doubt as to the size of the room by those who were allowed to see it. Because the principle is not that no false evidence shall be given in defendant’s absence, but it is that no evidence true or false shall be so given. Hence if the size and appearance of the room tends in any way to bear upon the question of the defendant’s guilt or innocence it is evidence, and must not be given to the jury in his absence. Bullet holes and splashes of blood might be in the room and their position might bear strongly on the guilt or [112]*112innocence of the prisoner. In this very case importance seems to have been attributed to the existence or non existence of a bullet hole at a certain place in the room. If it would have been evidence to testify that there was such a bullet hole, then it was giving evidence to show to the jury the bullet hole itself.
But again; either by word or by gesture, or by the mere fact that they were taken to a certain room by the officers and the member of the court, the jury were informed that that room was the place where the affray happened.
Now, in the first place,-this was unsworn evidence. No one stated to them under oath that that was the place of the affray. If on a trial any articles are to be exhibited to the jury, as for instance the clothes of a murdered man, the pistol of the murderer and the like, before they can be given in evidence proof must be given in respect to them. Some one must, on oath, identify them as being what they are alleged to be. But there was no identification of the room shown to the jury.
Did any one testify before the jury, “ This is the saloon of Hallenbeck Brothers ” ?
If so, then that evidence was given in defendant’s absence. If not, then the room was shown without identification by sworn testimony.
But, in the next place, the defendant has had no opportunity of denying that the room shown was that saloon. What knowledge has he as to the place to which the jury were taken ? They may have been taken to another room distant from the place of affray. He has no means of knowledge where they went.
Suppose it were in dispute whether the affray occurred in one room or in another of a house. Gan it be permitted that the jury shall be shown by two officers and one member of the court, in the defendant’s absence, such room as they may think best to exhibit; and that the defendant shall thus be kept in ignorance what room was so exhibited. For unless the defendant is present he cannot know what room was so [113]*113exhibited. Could the alleged clothes of a murdered man or the alleged pistol of the murderer be exhibited to a jury at some place outside of the court room and in the absence of the defendant? If the defendant had been present he might have denied that the room exhibited was the place of the affray. He might have called witnesses to show this. But as it is, he cannot, because he does not know what room was exhibited. Then the judge who accompanied them said, on his return, that they had been taken to the saloon of Hallenbeek Brothers. But how did the defendant know what place the judge and the two officers believed to be that saloon ?
The Code of Criminal Procedure, section 411, seems to in. tend that a judge of the court or a person appointed for tha\ purpose should show the place. How it was supposed that a judge of the court would know the place where the crime is alleged to have been committed is not very clear. He might perhaps have a familiarity with the description given by the witnesses, so that, to his own satisfaction at least, he would be able to identify the place. But it will be seen that he (or the person appointed) is to show the place to the jury. Hence, from this word it was evident, as was above stated, that the judge must convey to the jury, probably by words, his conviction that the place actually before them is that where the affray took place.
The next section, 412, probably is not construed to prevent this communication with the jury. And thus we have evidence given to them in the defendant’s absence, viz. : that the place shown is that referred to by the witnesses in describing the affray.
Once more, whenever articles are exhibited to a jury the inquiry is, or may be made, are they in the same condition as they were at the time of the alleged crime ?
How is the defendant not permitted to see the place as it is shown to the jury,—how is he to know whether the place, as exhibited, is just in the condition that it was at the time of the affray ? He is shut out from the opportunity of giving [114]*114evidence upon this point, because he is confined in the court room while some member of the court is showing the supposed place to the jury, and therefore does not know how the place now is.
Reference is made to the old system of “ views” in England. (3 Blackstone’s Com. 358.)
But it is to be observed that these were granted in civil actions, and that they preceded the trial; as will more fully appear in 1 Burr, 252.
And at page 256 of that same volume it will be seen that under the regulations of the court respecting them there was to be an appearance at the view of any person on the part of the plaintiff and another on the part of the defendant.
So that nothing was done in the absence of the parties or their representatives.
We need not consider whether a proceeding of this kind might not take place on a civil trial. Coble Civil Procedure, section 1659. We have only to confine our attention to the present case.'
Judgment reversed. New trial granted.
Landon, J., doubted as to there being any error in the way in which the view was made ; and added : “ My brethren, however, think that the judgment should be reversed. In that case I agree that the defendant stands acquitted of every charge except that of assault in the third degree. People v. Dowling, 84 N. Y., 478. I think a new trial can be granted for assault in the third degree. The defendant was not acquitted “ upon the indictment,” but of certain of the charges therein stated.
To avail himself of the provisions of section 36, Penal Code, he must have been fully acquitted upon the entire indictment.”
Eote. The statute contemplates the presence of the defendant and his counsel at a view in order that he may not be deprived of any of his constitutional rights to be confronted by witnesses against him. People v. Bush, (Cal.) 10 Pac. Rep. 169, also 12 Pac. Rep. 781.
[115]*115The right to be present at a view is one which may be waived by a defendant, State v. Congdon, 14 R. 1. 458.
Under the settled rule, that error is not to be presumed, but must affirmatively appear in the record, it will be presumed, in the absence of a showing to the contrary, that the proceedings of the jury on a view were in all respects regular. People v. Huff, (Cal.) 13 Pac. Rep. 168.
Whether a conviction of a lesser grade of crime works an acquittal of a higher grade with which the defendant is charged in the same indictment, is a question upon which there is some conflict, although the doctrine of the case at bar is sustained by the current of authorities. The question has generally arisen on indictments for murder, and it has been held in the following cases that where defendant indicted for murder has been convicted of a lesser grade of homicide, and has thereafter been granted a new trial, he can only be tried for the offense of which he was convicted; State v. Hornsby, 8 Robt. 583; 41 Am. Dec. 315; State v. Norvell, 2 Yerg. 24; 24 Am. Dec. 458; Jordan v. State, 22 Ga. 545; Barnett v. People, 54 Ill. 325; Brennan v. People, 15 Id. 511; People v. Knapp, 26 Mich. 112; Hart v. State, 25 Miss. 378; Slaughter v. State, 6 Humph. 410; Lewis v. State, 51 Ala. 1; Fields v. State, 52 Ala. 348; Smith v. State, 68 Ala. 424; Johnson v. State, 29 Ark. 31; State v. Lessing, 16 Minn. 75; State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139; People v. Gilmore, supra; State v. Desmond, 5 La. An. 398; State v. Brette, 6 La. An. 658; Clem v. State, 42 Ind. 420; Check v. State, 4 Tex. App. 448; State v. Belden, 33 Wis. 124; Jones v. State, 13 Tex. 168; 62 Am. Dec. 550.
There are a few cases in opposition to the general current of authorities, which hold that upon a retrial the defendant may be found guilty of the full offense charged in the indictment, among others, State v. McCord, 8 Kans. 232; State v. Behimer, 20 Ohio N. S. 572; State v. Simms, 71 Mo. 538; and the late case of State v. Anderson, (Mo.), 5 West. Rep. 420, which has attracted much attention and been subjected to unfavorable criticism.