Criminal Law - Trial - Duty of Judge to Instruct on Lesser and Included Crimes
Appellant was one of four defendants who were charged in three separate counts of an indictment with the crimes of attempted robbery in the first degree, attempted grand larceny in the first degree, and assault in the second degree with intent to commit robbery and grand larceny. After all the evidence had been entered, the trial judge submitted only the count of attempted robbery to the jury, instructing them that they return a verdict of guilty or not guilty of that crime. The defense excepted to the court's refusal to submit the other counts charged in the indictment. The defendant was found guilty of attempted robbery, and the verdict was affirmed by the appellate division. On appeal to the New York Court of Appeals, held, affirmed, three judges dissenting. The court is required only to instruct on a lesser or included crime when there is some basis in the evidence for finding the accused innocent of the larger crime and guilty of the lesser one. People v. Mussenden, 308 N. Y. 558, 127 N.E. (2d) 551 (1955).