People ex rel. Poulos v. McDonnell

In a habeas corpus proceeding, order sustaining a writ of habeas corpus, discharging relators from custody and exonerating bail, affirmed. The presentation to the jury of the issue of guilt of the relators of the crime of assault in the third degree was an incident or outgrowth of an indictment charging them with *780assault in the second degree, of which latter degree they were acquitted. The indictment thus having been disposed of, there is no charge by way of indictment, or information, or other lawful process pending against them. Nor can they be retried for an inferior degree of the crime of which they were charged in the indictment and acquitted. (Penal Law, § 32.) Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur. [198 Misc. 569.] [See post, p. 797.]