People v. Palmer , 8 N.Y. St. Rep. 499 ( 1887 )

Learned, P. J.

It is not necessary to decide the question whether the defendant on another trial can be lawfully convicted of any higher offense than assault in the third degree. It would seem by analogy to the Dowling Case, that he could not.

But it would not be proper to limit the matter by anything in our order.

This case differs from that of Dowling. In that case there were two counts for distinct crimes. It was therefore possible to direct a new trial on one only. In the present case there were three counts in the indictment, but all for the same offense of assault, and the defendant must be tried upon them.

Whether it will be necessary for him to plead the former trial as an acquittal, or whether the record will show the fact without further pleading, or whether on the trial he can ask the court to direct the jury that he cannot be convicted for any higher offense than assault in the third degree—all these are matters which will be'considered when they arise. There is no doubt that in some way the defendant’s rights in this respect (if his counsel’s position is correct) will be protected.

But an order that tie be tried only for assault in the third degree might possibly make a question as to the jurisdiction of the court of oyer under section 56 Code Criminal Procedure, or of any court, under section 35 of Penal Code. As the order now stands, the defendant cannot be harmed, and the rights of the people are not endangered.

Motion denied.