"Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto." The New York Court of Appeals, in the well considered case of Keefe v. The People, 40 N.Y. 348, early discussed the effect to be given to a statute of this character. Judge Grover, speaking for the Court, very pointedly remarked:
It has been suggested that the amendment was passed because of the statement of this court in the McDonald case. In Keefe v. People ( 40 N.Y. 348, 355) the statements of this court in the opinion are, particularly in view of the present provisions of the Code of Criminal Procedure, applicable if not controlling in this case. In that case the plaintiff in error was indicted for murder in the first degree. The indictment contained a single count for murder drawn as required by the common law. He was convicted of murder in the second degree which was then (1865) defined to be the killing of a human being without a design to effect death by a person engaged in the commission of a felony other than that of arson in the first degree. The conviction was sustained.
Neither Bayona nor Gorin was injured as a result of the shots. Shorn of the allegation of intent to kill, the indictment contains factual allegations sufficient to make out all of the material elements of reckless endangerment in the first degree and thus served to put appellant on notice that he might be required to disprove the element of conduct creating a grave risk of death in the event that the People's proof of his mental culpability fell short of the intent required for the charge of attempted murder (cf. Keefe v. People, 40 N.Y. 348, 357). Moreover, the trial evidence makes it clear that it would have been impossible on the facts as charged for appellant to have committed attempted murder without concomitantly committing reckless endangerment by the same conduct.