(concurring.) The prisoner was indicted for the crime of assault in the first degree, committed as follows: “The said John O’Connell, late of the city of Hew York, in the county of Hew York, aforesaid, on the 2d day of Hovember, in the year of our Lord one thousand eight hundred and ninety, with force and arms, at the city and county aforesaid, in and upon the body of one Thomas Daly, in the peace of the said people then and there being, feloniously did make an assault on him, the said Thomas Daly, with a certain axe, which the said John O’Connell in his right hand then and there had and held, the same being a deadly and dangerous weapon, then and there willfully and feloniously did strike, beat, cut, and wound him, the said Thomas Daly, thereby then and there feloniously and willfully to kill, against the form of the statute in such case made and provided, and against the peace of the people of the state of Hew York and their dignity.” There was also a second count in the indictment, charging an assault in the second degree. The prisoner, upon being arraigned upon the said indictment, on the 4th day of December, 1890, pleaded not guilty. On the 8th of December, 1890, the prisoner, by leave of the court and the consent of the district attorney, and being represented by counsel, withdrew the plea of not guilty “by him heretofore pleaded, and now pleads guilty of an attempt to commit assault in the first degree.” On December 12, 1890, he was arraigned at the bar, and the district attorney moved for judgment against him. He was asked what he had to say why judgment should not be pronounced against him according to law, and, he having stated that he had nothing further to say than what he had heretofore said, it was ordered and adjudged that the said John O’Connell, for the felony aforesaid, of which he was convicted, be imprisoned in the state-prison at hard labor for the term óf five years. It is now objected that the judgment appealed from is absolutely void, on the ground that there is no such offense known to the law as an attempt at assault in the first degree. It is very obvious from a perusal of the record that .the defendant intended to plead guilty of the commission of a very grave offense. It is also obvious that the indictment charged distinctly and specifically in its first count that the defendant had committed an assault in the first degree upon the body of Thomas Daly. The count is in proper form, and it is not challenged as correctly stating a crime defined by the L’enal Code. See section 217. This appeal is based upon the assumption that the district attorney and the court were led, by a false and delusive statement of the prisoner’s counsel, into accepting a plea of guilty to a crime unknown to the law, and the deduction is therefore claimed that the prisoner, having confessed to the commission of an act most reprehensible in its character, should be allowed to escape upon a pure technicality from the consequences of his own *488confession. If such a result is required by the- law, the court must so determine; but, after carefully examining the record in the case, and the authorities cited, we do riot think that the law requires the court to countenance the absurdity of the defendant’s using his own wrong to escape punishment for a most grievous offense. It is perfectly well settled in this state that a defendant may in a criminal case waive any irregularity which may occur ¡upon the trial. As was said by Earl, J., in Pierson v. People, 79 N. Y. 429: “A prisoner may waive a trial by jury, and plead guilty. He may waive a plea of autrefois acquit by not interposing it, or withdrawing it. He may waive or withdraw a challenge to a juror. He could waive his aright to have a challenge of a juror for favor tried by triers, and consent that it be tried by the court. He may waive objections to improper or incompetent evidence. In a court of special sessions he may waive a trial by jury, and be tried by the court. He may waive a challenge to the array of jurors by a challenge to the polls. He could consent to the separation of the jury during the trial, when such separation, without such consent, would be ground of error. A man cannot legally be indicted and tried as accessory to a felony until the principal be convicted; and yet, if he go to trial without insisting on the objection, he is held to have waived it.” People v. McKay, 18 Johns. 213; People v. Mather, 4 Wend. 239, 243, 246; People v. Rathbun, 21 Wend. 509, 542; Stephens v. People, 19 N. Y. 549, 563; Gardiner v. People, 6 Parker Crim. R. 155. In People v. Rathbun, Cowen, J., said: “The prisoner may oven waive his right to a trial at the hands of a jury on the merits by pleading guilty.' Having this power, no one will pretend that he cannot consent to anything less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” See, also, People v. Cignarale, 110 N. Y. 23, 17 N. E. Rep. 135; Bish. Crim. Law, (3d Ed.,) § 18. We are of opinion, therefore, that as the defendant voluntarily entered the plea of guilty in this case, and has made no motion in arrest of judgment, nor taken any steps to correct an error, if any error existed, which was created by his own act, it is too late for him now to" complain of any informality in either his plea or sentence. See, also, as to attempts to commit a crime, People v. Bush, 4 Hill, 133; McDermott v. People, 5 Parker Crim. R. 102. But we are of the opinion, further, that no error was committed in either the plea or in the sentence. Common sense, and not Ultra refinement and nicety of criticism, should be applied in construing the defendant’s plea. While the utmost care should be taken in criminal cases to preserve the rights of the accused, he should not be allowed, upon specious pretext and cunningly devised expressions, to mean one thing and say another. Of what did the defendant really plead guilty in this case? Of a crime, or of the shadow of a crime? Hot the latter. If such had been the understandihg of the parties as to the nature of the defendant’s plea, it would not have been received. •He stood at the bar, indicted for a serious crime, with the district attorney ready to proceed with the trial. Voluntarily he dispenses with the necessity of that trial by a plea of guilty. A plea of guilty of what crime, of what offense? Obviously a plea of guilty of the crime for which he stood indicted under the first count of the indictment,—i. e., the crime of assault in the -¡first degree, as charged in the indictment; of an assault upon Thomas Daly, with a deadly and dangerous weapon, to-wit, an axe. It was to this" indictment that the prisoner, by a fair interpretation of his plea, pleaded guilty, and the court would be doing violence to language, in our opinion, to hold otherwise. The necessary result of these views is that the judgment of the court of general sessions was correct, and should be affirmed.