Opinion
March 20, 1941.
Appeal from Broome County Court.
The appellants were indicted by a Broome county grand jury on September 4, 1940, for the crime of assault, second degree, it being charged that each aiding and abetting the other on the 8th day of August, 1940, did assault one William Seeley by striking him about the head and face and thereby wounding and inflicting grievous bodily harm upon him. It appears that Seeley was struck by a bare fist on the nose and was also struck by a bare fist on the head, which produced a wound which left a half-inch scar. As the result of the conviction, appellant Klepfer was sentenced to Attica State Prison for an indeterminate term of not less than two and one-half years and not more than five years and to pay a fine of $500, and to be confined one additional day in prison for each dollar of the fine unpaid. The appellant Gilmore was sentenced, as a second felony offender, to Attica State Prison for an indeterminate term of not less than nine years and not more than ten years and to pay a fine of $1,000, and to be confined in prison one day for each dollar of the fine unpaid. The sentences imposed upon these defendants were excessive and unreasonable and should be modified. This assault grew out of a labor dispute which occurred in the city of Binghamton. It was not an assault with a dangerous weapon but the indictment charged that the defendants inflicted grievous bodily harm. In the case of Ellis F. Klepfer, the judgment of conviction is modified by reducing the sentence of not less than two and one-half and not more than five years and to pay a fine of $500, to an indeterminate term of not less than one year and not more than two years, credit to be given for such time as already spent either in jail or prison. In the case of Carl Gilmore, the judgment of conviction is modified by reducing the sentence of not less than nine years and not more than ten years and to pay a fine of $1,000, to an indeterminate term of not less than five years and not more than ten years, credit to be given for such time as already spent in jail and in prison. Gilmore having been sentenced as a second offender, this court has no power to further reduce the sentence. He may take appropriate proceeding for executive clemency if he is so advised. As so modified, both judgments of conviction are affirmed. Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ., concur.