People v. Hickey — 18 N.Y. Sup. Ct. 631

Majority

p. 631

THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. ROGER HICKEY and JOHN B. LYNCH, Plaintiffs in Error.

Headnote

OTia/g. 74 of 1854 — what necessary to authorize conviction under.

Under chapter 74 of 1854, providing for the punishment of any person convicted of “ any assault upon the person of another with any knife, dirk, dagger or other sharp, dangerous weapon,” no conviction can he had unless the weapon with which the assault is made is sharp, as well as dangerous.

p. 632

Writ OK ERROR to tbe Court of General Sessions of Warren county, to re-view tbe conviction and sentence of tbe plaintiffs in error of an assault with intent to kill.

Tbe indictment charged that tbe plaintiffs in error assaulted one William J. Davis with an iron stove griddle or cover, a club and a chair, with intent to kill him.

Tbe jury rendered tbe following verdict: “ Guilty of an assault and battery, without justifiable or excusable cause, with a dangerous weapon, with intent to do bodily barm.” Tbe prisoners were then sentenced to bard labor in tbe State prison for two years, under tbe act of 1854.

A. J. Cheritree, for tbe plaintiffs in error.

Gha/rles M. Mott, for tbe defendants in error.

We have no doubt that tbe statutory offense must be an assault ■with a sharp as well as with a dangerous weapon. This is tbe reasonable construction of tbe language. It is also tbe construction implied by tbe language of tbe Court of Appeals in tbe case of Filkins, plaintiff in error, v. The People, defendants in error (4 Weekly Digest).

In tbe present case tbe jury did not find that tbe assault was with a sharp weapon, and it was not, in fact. Tbe verdict, therefore, is in effect for an assault and battery. And the judgment must be reversed, and tbe case remitted to tbe Court of Sessions for a sentence, viz., for a conviction for assault and battery.

Present — LearNed, P. J., Bo'oKes and BoardMAN, JJ.

Judgment reversed and case remitted to Court of Sessions for sentence on verdict of assault and battery.