The defendant was indicted for assault in the second degree. In the indictment is was charged, and the evidence of the prosecution tended to show, that the defendant was guilty of an assault with an intent to commit a rape. Whether an assault was made; if so, its character, and the intent of the defendant in making it,—were the questions at issue and litigated on the trial. The court, in effect, charged that if the jury found that the defendant performed the acts testified to by the complainant, with the intent of perpetrating an act of sexual intercourse with her, without her consent, and against her utmost resistance, it would constitute assault in the second degree, but that, if they were performed without that intent, it would amount only to assault in the third degree. The jury found the defendant guilty of assault in the third degree. A careful and somewhat critical examination of the evidence renders it clear, we think, that it was sufficient to justify the verdict. The logic of the contention that the judgment should be reversed because the jury failed to find the intent necessary to constitute assault in the second degree is not quite apparent. The evidence was perhaps sufficient to have justified the jury in finding the intent necessary to constitute the greater offense. Yet it may have had a reasonable doubt as to such intent, while it had.none whatever as to the assault. Under these circumstances the defendant was properly convicted of the lesser crime (Pen. Code, § 35), and it follows that the judgment should be affirmed, unless there is some valid exception in the case requiring a reversal.
The only exception to which the defendant has called our attention is to the admission of evidence as to the contradictory statements of the witness Jesse Conkling. This witness had testified that on the night of the assault he met a “rig” beyond the woods; that the horse was light colored, hitched to a top buggy; and that there were two persons in the wagon. It was claimed by the *512defendant that the persons who were mentioned by the witness were the complainant and himself. The witness also testified:
“Met them somewhere between the sluiceway and the hill. Can’t say just where. We had passed over the bridge. Lady and gentleman in the carriage. I saw the lady turn and look back.”
On the cross-examination of this witness, he testified:
“I did not state to Melzer Buck that I met a gray horse and carriage, with two persons in, between the bridge and the top of that stony hill.”
The people subsequently called Melzer Buck, and asked him this question:
“Some time last winter, at Jesse Conkling’s house, did he say to you, in the presence of Ed. Perry, that he met this rig, with a white horse and carriage, and two persons in the carriage, between the sluice or bridge on the east side of the Beaver Woods and the top of the stony hill?”
This was objected to on the ground—
“That, no matter what would be the response to it, or assuming that the response is to be what the question indicates, it doesn’t in any respect contradict the witness in any material part of his evidence; that it is wholly indefinite; that he might have said it is between the top of the stony hill •and the bridge, because his testimony is so, only he locates it more particularly within that limit. There is no contradiction about it. The Court: I think I will allow the people. There is a slight variation in the statement, from which may be argued that the witnesses at that time were less certain about the precise position than they are on the stand.”
The question was allowed, to which the defendant excepted, and the witness answered, “He did say so.” We find in this ruling no error which would justify a reversal of the judgment. While it may be that the contradiction was not a serious one, ye't, as stated by the court, it tended to show that, at a time nearer the transaction than the trial, the witness had declared that he met the rig somewhere between the sluiceway and the top of the hill, while at the trial he testified that it was between the sluiceway and the hill. That it is proper to show inconsistent statements of a witness out of court, to affect his credibility, is too well established to require discussion. Sloan v. Railroad Co., 45 N. Y. 125. If, however, the evidence of these witnesses in no way contradicted that of the witness Oonkling, it is difficult to see how the defendant was in any way injured by the admission of the evidence. Ho substantial right was prejudiced thereby, and hence, under the provisions of section 764 of the Code of Criminal Procedure, as it was merely a technical error, it should be disregarded. These considerations lead us to the conclusion that the judgment appealed from should be affirmed.
Judgment of conviction of the court of sessions of Herkimer county affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Herkimer county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.
MERWIH, J., concurs. HARDIH, P. J., not voting.