Judgment reversed on the law and a new trial ordered.
No questions of fact have been presented to or decided by this court. In view of the evidence that the shotgun was discharged into the ground, the jury, under appropriate instructions, might have found that the element of intent referred to in section 242 of the Penal Law was not present but that there was guilt of third degree assault nevertheless. The request to charge different degrees of the crime should have...
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