People v. Parker — 10 N.Y. Crim. 460

Majority

p. 460

Supreme Court-General Term-Second Department.

May 8, 1893.

PEOPLE v. ORLA W. PARKER.

(53 St. Rep. 411; 69 Hun, 130.)

Headnote

$. ©rlminal law—Assault—Complaint’.

A complaint, which charges the defendant with “maliciously and unlawfully heating” the complainant by “kicking him in the head, body and face without provocation,” is sufficient to support a conviction of assault in the third degree.

2. Same—Adjournment—Payment of money.

Where, in order to procure an adjournment, which the justice hesitated to grant, defendant offered to and did pay to him a sum of money for the complainant's expenses and private counsel and which were presumably paid to such counsel, such payment furnishes no reversible error.

Appeal from judgment of the Queens county court of sessions, affirming, as modified, a judgment of a court of special sessions, convicting defendant of the crime of assault in the third degree.

Defendant was originally sentenced to the Queen® county

p. 461

penitentiary tor which the court of sessions substituted imprisonment in the county jail.

George B. Stoddart, for appellant.

John Fleming, dist. atty., for respondents.

The ■ complaint before the police justice against the defendant was good. The offense was described to be one for “maliciously and unlawfully beating” one Egan by “kicking him in the 'head, body and face without provocation.” The name given to the offense was without any materiality. After the arrest of defendant he refused to make any plea or answer any questions. He elected to be tried by the court and asked for an adjournment. This was granted; he, the defendant, being admitted to bail during the trial. A second adjournment was had at defendant’s request, and on the 8th of July, 1891, the ease was tried. There is presented by the evidence a dispute, not as to the assault, but as to a provocation for one, and upon this point I think the justice found clearly according to the evidence. The assault was unprovoked and severe and rendered more intolerable to the complainant by a suggestion of an infamous inference which is wholly unsupported by the evidence. The proof offered at folio 55 to the belief of the defendant as to the complainant’s intention, was improperly rejected; but the rejected proof was subsequently admitted at folio 57. The payment of $11.00 for complainant’is lawyer and Ms own expenses furnishes no reversible error. The justice had hesitated as to a further adjournment and the defendant agreed to pay $10.00 for that purpose, which was delivered to the justice and, presumably, by him paid to the private counsel of the complainant.

The judgment, as modified by the county judge, is therefore affirmed.

DYKMAN and PRATT, JJ., concur.