Opinion
June 29, 1961
Appeal from an order of the County Court of Rensselaer County which dismissed an indictment. So far as here pertinent, section 242 of the Penal Law provides that "A person who * * * 3. Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or, 4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; * * * Is guilty of assault in the second degree." The first count of the indictment before us charges (under subd. 3) that defendant assaulted another "by wilfully and wrongfully wounding and inflicting grievous bodily harm upon [him] with a dangerous weapon, to wit: A Post Hole Digger." Assuming that a post hole digger is not a "weapon", its characterization as such in this count is surplusage merely and is in no way prejudicial, since the use of a weapon is not necessary to constitute the crime and the allegations may be treated as simply charging that the acts were committed by means, or with the use of a post hole digger. The first count should stand. (Code Crim. Pro., §§ 285, 684.) The second count charges (under subd. 4) that at the time and place specified in the first count of the indictment defendant assaulted the same individual by striking him "with a dangerous weapon, instrument or thing likely to produce grievous bodily harm, to wit: A Post Hole Digger." The failure to allege in the language of the statute that defendant "wilfully and wrongfully" assaulted another seems to us fatal, if for no other reason than as failing to negate the possibility of an accidental or inadvertent striking of another with an "instrument" or a "thing" ordinarily or in ordinary use innocuous but nevertheless "likely", when otherwise used, "to produce grievous bodily harm". The "phrase [wilfully and wrongfully] so appearing in subdivision four has been construed to require a specific intent" ( People v. Katz, 290 N.Y. 361, 365, and cases cited). "When a particular or specified intent is essential to and is the gist of the offense it is necessary to allege the intent with distinctness and precision". ( People v. Santoro, 229 N.Y. 277, 282-283.) Order modified, on the law, so as to provide that the demurrer be allowed as to the second count of the indictment only, with leave to resubmit, and, as so modified, affirmed. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.