White v. . the People , 32 N.Y. 465 ( 1865 )

The plaintiffs in error were jointly indicted in the Court of Sessions for Onondaga county, upon an indictment containing three counts. In the first, it is charged that the prisoners, with others, riotously and unlawfully assembled on the first Tuesday of November, 1863, at an engine house in the 5th ward of the city of Syracuse, where an election had been held on that day, and then and there pulled down and destroyed the engine house in willful disobedience of the lawful commands of the inspectors of the election, and to the great terror, c. The second count was like the first, except that the offense is charged to have been committed in the night time, and nothing is said about the inspectors of election. The third count charged that the prisoners and others, with force and arms, brickbats, c., riotously, tumultuously assembled on the day aforesaid, and so being assembled, did riotously and unlawfully assault and beat a person to the jurors unknown. Upon the trial evidence was given tending to show that the prisoners were guilty of the offenses charged in the indictment, and which related exclusively to one and the same transaction, and at the same time and place where an election had on that day been held, and while the inspectors of the election were employed in canvassing the votes cast thereat. The proof also showed that the person assaulted and beaten was one Frank Hiscock, a well known person in that vicinity; but there was no evidence to show he was known to the jury who found the bill of indictment. The jury found the prisoners, O'Brien, Harty and French, guilty of the assault and battery, and White, Hennessey and Scott guilty of an assault only, and acquitted them upon the other counts in the indictment. Instructions to the jury were asked for by the prisoners' counsel, which I will presently notice, and which the court declined to give, and the counsel excepted. A motion was also made at the close of the trial in arrest of judgment and denied, which I will also consider. The judgment was removed by a writ of error to the Supreme Court, where it was affirmed at the General Term of the fifth district. The prisoners thereupon sued out their writ of error to this court.

The jury having acquitted the prisoners upon the two first counts of the indictment, all questions raised upon the trial, and upon the motion in arrest of the judgment in regard thereto, are disposed of and need not be considered. In regard to the assault and battery, the court was requested to instruct the jury that the prisoners could not be convicted of an assault and battery upon Hiscock or Farnam and Mullholland (the two latter having been mentioned in the evidence as persons also assaulted and beaten at the time), because they were not mentioned in the indictment. This the court declined to do, and the prisoners' counsel excepted. The point presented is, whether a person charged with an assault and battery upon a person to the jury unknown can be convicted when it appears that the person assaulted becomes known at the time of the trial, there being no evidence as to any knowledge the grand jury, who found the indictment, had upon the subject. This rule, if it could be adopted, would insure the acquittal of every one charged with an offense committed upon the person whose name is unknown to the jurors at the time the indictment is found. For it is hardly possible that his name would not be discovered and become known (if in no other way by the vigilance of the prisoner certainly) before the time of the trial. Besides, the prisoners were not prejudiced by the absence from the indictment of the name of the person assaulted and beaten. The identical point seems to have been decided against the prisoners in Noakes v. The People (25 N.Y., 380). The prisoners' counsel also contended upon the motion in arrest that part of the defendants could not be found guilty of an assault and battery, and part of them of an assault only, upon the same indictment. There can be no battery without an assault at the same time. The former implies the latter. But there may be an assault without a battery. The assault actually made may stop short of an actual battery. It is a crime, nevertheless, for which the perpetrator may be indicted and punished. Although the greater offense includes the lesser, they are known and recognized in the law as two distinct offenses. One of the consequences of this is that the jury, upon an indictment for an offense that includes another of an inferior degree, may acquit the prisoner of the higher crime and convict him of the lesser. Had any one of the plaintiffs in error been charged singly with an assault and battery, it cannot be doubted that the jury might have found him guilty of the assault alone. And so, when all of them are charged upon a similar indictment for acts jointly done at the same time, a portion may be convicted of the principal offense and another portion of them of the lesser charge. Such a result may be demanded by the evidence, as we are bound to presume it was in the present case, and no one can be prejudiced thereby.

The judgment should be affirmed and the record remitted to the Court of Sessions with directions to proceed to execute the sentence.