Spring, J.:
The defendant and his brother, Pasqualo Schiavi, were jointly indicted for manslaughter in the first. degree charged with killing Antonio Perfetti op the 18th day of July, 1903. The indictment charged that the defendants named : “ Then and there being wilfully and feloniously did make an assault and
The Schiavi brothers and Antonio Perfetti and his brother Antolena belonged to a gang of laborers employed by the New York Central and Hudson River Railroad Company, and were stationed at Presho, in the town of Lindley, in said county of Steuben. They, had lived in box freight cars at that place since March preceding the alleged assault. The Perfetti brothers with others occupied one car while the Schiavi brothers were in another.
On the eighteenth day of July the men were not at work and spent the day in drinking beer, playing cards and loafing about and at the time 'of the catastrophe were sufficiently intoxicated to be quarrelsome. About five o’clock in the afternoon Antonio Perfetti went into his car and was followed by the defendant, who carried a revolver in his hand. They had been indulging in a wordy altercation outside the car before going inside, and according to the People’s witnesses the defendant as he went into the car said to Antonio Perfetti, “ we have always been friends, now we want to be enemies.” Antonio ordered him to leave the car, which he did not do, and a tussle followed. The defendant’s brother Pasqnalo joined in the affray assisting his brother, and Antolena also participated in behalf of Antonio. All of the participants were more' or less cut with knives, but Antonio received a deep gash in the abdomen, from which wound he died four days later. The witnesses on behalf of the People were unable to identify the person who did the fatal stabbing. The most of them testified that the defendant had a revolver but no knife and that Pasqnalo had a knife. Antolena Perfetti, however, testified that each of the Schiavi brothers had a knife, and Antonio in a dying statement made by him shortly prior to his death corroborated his brother in that particular.
The defendant and his brother Pasqualo were sworn and testified [482]*482that Antolena Perfetti struck with his knife at the defendant, who jumped aside and the knife penetrated the abdomen of Antonio, and that was the wound which, caused his death, and it appears that there was only one incision in that part of the body. The evidence of the defendant and his brother furnished the only direct proof of the mortal wound inflicted upon Antonio.
The defendant was tried for the crime of manslaughter in the first degree, as charged in the indictment, and the trial court, in his main charge to the jury, confined himself to the charge of manslaughter, defining both degrees of that crime. The jury retired about seven o’clock in the evening and returned at midnight, and in response to an inquiry of the court if they had agreed the foreman said: “ The minority have declared they would stand until hell froze over.” At nine-thirty the following morning the jury reported to the court, who instructed them as follows: “ Gentlemen of the Jury, I received your communication, in which you inquire if you could render a verdict for a lesser degree, and would say, if you are unable to agree upon a verdict on the charge named, you have the right, if in your opinion, the evidence warrants it, to render a verdict for a lesser degree. The defendant is indicted for manslaughter in the first degree; there is a second degree of manslaughter, the extent of the punishment of which is less, and if in your judgment the evidence warrants it you can bring in a verdict for the lesser degree, or for any degree of assault constituted .by said act, if warranted by the evidence, if you shall find that the act complained of was not the cause of death. You may retire for further deliberation.” Upon the request of the defendant’s counsel the court thereupon defined the degrees of manslaughter and of assault, and the jury shortly returned with the verdict of guilty of assault in the first degree. Upon a succeeding day, to which the action was adjourned, the counsel for the defendant moved that the defendant be discharged upon specific grounds, among which were that the verdict acquitted the defendant of the crime charged in the indictment,' and that .the. evidence did not warrant the verdict, and that the same was illegal and void.
Until quite recently, upon an indictment charging the defendant with ’homicide of any grade, the jury might not convict him of an assault. (People v. McDonald, 159 N. Y. 309, 314.) The Legis[483]*483lature thereafter, by chapter 625 of the Laws of 1900, amended section 444 of the Code of Criminal Procedure, adding the following sentence: “ Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act and warranted by the evidence.”
The jury, under the evidence, might have found the defendant guilty as charged in the indictment either upon the inference deducible that he committed the fatal wound, or that the act was perpetrated by Pasqualo while the two were jointly engaged in a murderous assault upon Antonio, and still the defendant be convicted as principal. (Penal Code, § 29.)
For the purpose of getting at the true meaning of the amendment to section 444 of the Code of Criminal Procedure, we will put that aspect upon the verdict of the jury most favorable to the contention of the district attorney.
We may say the jury discredited the version given by the Perfetti brothers and the witnesses on behalf of the People, and believed the story of the defendant and his brother, that the deadly stab was inflicted by Antolena Perfetti. The jury, however, did not wish to relieve the defendant of all guilty participation in the affray, so, mindful of the charge of the court, convicted him of assault with intent to kill Antonio. The evidence may be said to warrant this finding. The defendant had a revolver in his hand that, with his finger on the trigger, he pointed at Antonio; he had a knife, which he used on Antonio, as there were several knife cuts made by the defendant or Pasqualo. The jury, therefore, may have been justified in concluding that the defendant assaulted Antonio with intent to take his life.
We are, therefore, to consider if the verdict, though sustained by the evidence, was permissible by reason of the interpolated sentence in section 444 of the Code of Criminal Procedure. “ The act complained of ” was that Antonio was fatally cut in the abdomen by the defendant and Pasqualo Schiavi, or, as the case is presented, in effect the charge is that the defendant perpetrated homicide. The . verdict of the jury exonerates him of the crime charged.
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Spring, J.:
The defendant and his brother, Pasqualo Schiavi, were jointly indicted for manslaughter in the first. degree charged with killing Antonio Perfetti op the 18th day of July, 1903. The indictment charged that the defendants named : “ Then and there being wilfully and feloniously did make an assault and
The Schiavi brothers and Antonio Perfetti and his brother Antolena belonged to a gang of laborers employed by the New York Central and Hudson River Railroad Company, and were stationed at Presho, in the town of Lindley, in said county of Steuben. They, had lived in box freight cars at that place since March preceding the alleged assault. The Perfetti brothers with others occupied one car while the Schiavi brothers were in another.
On the eighteenth day of July the men were not at work and spent the day in drinking beer, playing cards and loafing about and at the time 'of the catastrophe were sufficiently intoxicated to be quarrelsome. About five o’clock in the afternoon Antonio Perfetti went into his car and was followed by the defendant, who carried a revolver in his hand. They had been indulging in a wordy altercation outside the car before going inside, and according to the People’s witnesses the defendant as he went into the car said to Antonio Perfetti, “ we have always been friends, now we want to be enemies.” Antonio ordered him to leave the car, which he did not do, and a tussle followed. The defendant’s brother Pasqnalo joined in the affray assisting his brother, and Antolena also participated in behalf of Antonio. All of the participants were more' or less cut with knives, but Antonio received a deep gash in the abdomen, from which wound he died four days later. The witnesses on behalf of the People were unable to identify the person who did the fatal stabbing. The most of them testified that the defendant had a revolver but no knife and that Pasqnalo had a knife. Antolena Perfetti, however, testified that each of the Schiavi brothers had a knife, and Antonio in a dying statement made by him shortly prior to his death corroborated his brother in that particular.
The defendant and his brother Pasqualo were sworn and testified [482]*482that Antolena Perfetti struck with his knife at the defendant, who jumped aside and the knife penetrated the abdomen of Antonio, and that was the wound which, caused his death, and it appears that there was only one incision in that part of the body. The evidence of the defendant and his brother furnished the only direct proof of the mortal wound inflicted upon Antonio.
The defendant was tried for the crime of manslaughter in the first degree, as charged in the indictment, and the trial court, in his main charge to the jury, confined himself to the charge of manslaughter, defining both degrees of that crime. The jury retired about seven o’clock in the evening and returned at midnight, and in response to an inquiry of the court if they had agreed the foreman said: “ The minority have declared they would stand until hell froze over.” At nine-thirty the following morning the jury reported to the court, who instructed them as follows: “ Gentlemen of the Jury, I received your communication, in which you inquire if you could render a verdict for a lesser degree, and would say, if you are unable to agree upon a verdict on the charge named, you have the right, if in your opinion, the evidence warrants it, to render a verdict for a lesser degree. The defendant is indicted for manslaughter in the first degree; there is a second degree of manslaughter, the extent of the punishment of which is less, and if in your judgment the evidence warrants it you can bring in a verdict for the lesser degree, or for any degree of assault constituted .by said act, if warranted by the evidence, if you shall find that the act complained of was not the cause of death. You may retire for further deliberation.” Upon the request of the defendant’s counsel the court thereupon defined the degrees of manslaughter and of assault, and the jury shortly returned with the verdict of guilty of assault in the first degree. Upon a succeeding day, to which the action was adjourned, the counsel for the defendant moved that the defendant be discharged upon specific grounds, among which were that the verdict acquitted the defendant of the crime charged in the indictment,' and that .the. evidence did not warrant the verdict, and that the same was illegal and void.
Until quite recently, upon an indictment charging the defendant with ’homicide of any grade, the jury might not convict him of an assault. (People v. McDonald, 159 N. Y. 309, 314.) The Legis[483]*483lature thereafter, by chapter 625 of the Laws of 1900, amended section 444 of the Code of Criminal Procedure, adding the following sentence: “ Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act and warranted by the evidence.”
The jury, under the evidence, might have found the defendant guilty as charged in the indictment either upon the inference deducible that he committed the fatal wound, or that the act was perpetrated by Pasqualo while the two were jointly engaged in a murderous assault upon Antonio, and still the defendant be convicted as principal. (Penal Code, § 29.)
For the purpose of getting at the true meaning of the amendment to section 444 of the Code of Criminal Procedure, we will put that aspect upon the verdict of the jury most favorable to the contention of the district attorney.
We may say the jury discredited the version given by the Perfetti brothers and the witnesses on behalf of the People, and believed the story of the defendant and his brother, that the deadly stab was inflicted by Antolena Perfetti. The jury, however, did not wish to relieve the defendant of all guilty participation in the affray, so, mindful of the charge of the court, convicted him of assault with intent to kill Antonio. The evidence may be said to warrant this finding. The defendant had a revolver in his hand that, with his finger on the trigger, he pointed at Antonio; he had a knife, which he used on Antonio, as there were several knife cuts made by the defendant or Pasqualo. The jury, therefore, may have been justified in concluding that the defendant assaulted Antonio with intent to take his life.
We are, therefore, to consider if the verdict, though sustained by the evidence, was permissible by reason of the interpolated sentence in section 444 of the Code of Criminal Procedure. “ The act complained of ” was that Antonio was fatally cut in the abdomen by the defendant and Pasqualo Schiavi, or, as the case is presented, in effect the charge is that the defendant perpetrated homicide. The . verdict of the jury exonerates him of the crime charged. The logic of the verdict is that Antolena was guilty of the act with which the Schiavi brothers are accused in the indictment. The jury have not [484]*484found that Antonio did not die of the wound in his abdomen. The. evidence shows without controversy that he suffered one knife wound in the abdomen, and that resulted in his death. At the threshold of the inquiry, therefore, we are met with the failure to find the essential fact which allows a verdict for assault Where the defendant is upon trial for a homicide, namely : “ If the act complained of is not proven to be the cause of .death,” the very essence of the. permissive amendment is lacking. Here “the'act complained of” is unmistakably proved to be the cause of death. The accusation in the indictment is a definite concrete statement that the wound in the abdomen was inflicted by the defendant and his brother, and that death resulted therefrom. The proof, in the light of the verdict of the jury, is that the death did result from that wound, but it was not inflicted by the defendant.
Blit the learned district attorney, with considerable plausibility, urges that “ the act complained of ” embraces the statement that the defendant committed it and the jury have found otherwise. Concede his premise and we are not aided in arriving at his conclusion. The defendant is still charged with one offense, the killing of Antonio by a stab in the abdomen. The accusation is not that the defendant cut him in the back or in the arm,, or did any other act excépt to strike him with a knife in the abdomen, causing death. The jury have apparently exculpated him of the offense of which he was accused and found he committed another assault. They have not held that the cut in the abdomen was not mortal, only that the defendant was not responsible for it. The position taken by the counsel excludes the act which was done, the infliction of the mortal wound, and makes the person charged, the instrumentality alleged to have committed it, of paramount importance, and if he did not do the act, although it was in fact done as “ complained of,” then the jury may find for the lesser offense. The peculiar language, “ the act complained of,” comprises the deed which must have been proved not to have caused death before the verdict of assault may be justified. ■ That is, we cannot disregard the physical act itself charged in the indictment and which the. proof shows caused the death of Antonio.
Ah analysis of the residue of the added sentence in the section which permits the defendant to “be convicted of assault in any [485]*485degree constituted by said act and warranted by the evidence,” confirms our position. “ Constituted by said act ” means that the assault must form a component part of the act, of the stabbing in the abdomen, of the wound indisputably fatal which the jury held was not-committed at all by the defendant.
It is insisted that this construction renders the amendment wholly ineffective and meaningless. If the evidence warranted the conclusion that Antonio did not die of the wound in the abdomen, but from some other cause, then the indispensable preliminary would be met. It may be, perhaps, when a man is on trial for murder or manslaughter that the evidence may show that death did not result from the act charged, but from some other cause, still the defendant did commit the act of which he is accused, and the jury, by virtue of the amendment in question, may convict of an assault. This interpretation does no violence to the language employed, is consistent with good sense, and the conviction would be based upon the very act set out in the indictment.
There is another suggestion of more or less cogency. The dying declaration of Antonio Perfetti was received in evidence. This statement was only admissible upon the principle that “ the death of the deceased is the subject of the charge and the circumstances of the death (are) the subject of the dying declaration.” (Rex v. Mead, 2 B. & C. 605, quoted approvingly in 1 Grreenl. Ev. [15th ed.] § 156; Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274, 287 et seq.; Wilson v. Boerem, 15 Johns. 286; People v. Davis 56 N. Y. 95, 103.) The jury disregarded the story of the declarant as to who inflicted the fatal wound, but the statement contained material facts aside from this. He said that the defendant and Pasqualo assaulted him, both stabbing him and that he made “ no attempt to cut anyone ” and only endeavored to defend himself. These statements were very potential on the charge of assault and were not admissible for the purpose of proving that crime.
The counsel for the appellant claims that the jury acquitted the defendant of . the crime for which he was indicted and if the verdict is unjustifiable he must be discharged, We do not assent to this proposition and our reasons are set forth in People v. Wheeler (79 App. Div. 396, 398 et seq.) and in the authorities there cited and a further rehearsal of them, would not be profitable at this time.
[486]*486The fact that a motion was made for a discharge of the defendant instead of for a new trial does not aid him on this appeal. The review of a judgment of conviction is by appeal (Code Grim. Proc. § 515) and the appellate court possesses ample authority to order a new trial if it so elects. (Id. § 543.) The defendant is voluntarily in this court by the only procedure allowed, and the provisions of the Code of Criminal Procedure cited in the opinion in the case of People v. Wheeler (supra) are abundant to authorize the granting of a new trial. A mistrial has been had, an error lias been committed, a verdict has been received contrary to law, and the action is in the same situation as if no trial at all had been had.
The judgment of conviction should be reversed, and a new trial ordered in the Steuben County Court.
All concurred, except Stover, J., who dissented in an opinion.
Sic.