Opinion
February, 1916.
The testimony established facts warranting a jury in finding that appellant inflicted grievous bodily harm and injury on the person of complainant in committing the robbery of his watch, which made out robbery in the first degree. (Penal Law, § 2124, subd. 3.) There was no testimony tending to warrant any finding of the offense of robbery of a lesser grade, and, therefore, the court was not required to instruct the jury that they could find appellant guilty of any lesser degree of crime, especially as no such instruction was asked or exception taken to the instructions which the court gave. In view of the testimony such a request to charge that the jury could convict of a lesser grade of the offenses charged would not have been appropriate. The other points raised are without merit. The judgment of conviction is, therefore, affirmed. Jenks, P.J., Thomas, Stapleton, Mills and Putnam, JJ., concurred. Judgment of the County Court of Kings county affirmed.