People v. McGoldrick , 1954 N.Y. App. Div. LEXIS 5894 ( 1954 )

Judgment of the County Court, Rings County, convicting appellant of the crime of manslaughter in the second degree, as a second felony offender, reversed on the law and the facts and a new trial ordered. In reviewing the evidence for the jury, the trial court characterized certain evidence as “ some speculation ” when the fact is that such evidence had been agreed upon by stipulation. Under the wording of the indictment, there was no error in failing to charge the jury with respect to assault in the first degree. (People v. Santoro, 229 H. Y. 277.) Assault in the second degree might have been charged upon suitable request which would include an assumption that it was found that the act complained of was not the cause of death. The new trial is granted in the interests of justice. Ho separate appeal Res from the intermediate orders, which have been reviewed on the appeal from the judgment of conviction. Adel, Wenzel and Schmidt, JJ., concur; Holán, P. J., and Beldoek, J., dissent and vote to affirm. [See post, p. 1059; 284 App. Div. 978.]