Opinion
June 15, 1967
Appeal from the Lewis County Court.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously reversed and indictment dismissed. Memorandum: An indictment was returned against appellant charging assault, second degree, in that "with intent to prevent and resist his lawful apprehension and detention" he assaulted a Deputy Sheriff. Upon the trial the People offered no proof to sustain this allegation. Instead the evidence was that if an assault was committed it was to prevent the apprehension and detention of a third party. At the close of the People's case defendant moved to dismiss and the prosecution moved to amend the indictment so that it would read that the alleged assault was committed with intent to prevent appellant's apprehension and detention "or that of another." The court denied the defense motion but both the stenographer's minutes and those of the clerk fail to show that the motion of the People was ruled upon. The case was submitted to the jury as if the indictment had been amended. Assuming, however, that the motion had been granted the amendment was completely invalid and bestowed no jurisdiction upon the court. ( People v. Crawford, 27 A.D.2d 312.)