dissent">

Halpern, J. (dissenting).

I do not believe that either of the grounds given in the majority opinion justifies a reversal of the judgments of conviction in this case.

1. The trial court’s failure to excuse Stockweather for cause is not, in my opinion, a proper ground for reversal. After Stockweather had given the answers quoted in the majority opinion and after the counsel for one of the defendants had asked that he be excused for cause, the District Attorney put the following questions and elicited the following responses:

“ Q. Would you decide the case entirely on the evidence you hear in the courtroom? A. Yes, sir; I would.

“ Q. You would disregard anything that is in your mind? A. Yes.”

Thereupon, the court stated “ You may continue your examination. In view of the last statement, I feel there is not proper cause there.” The examination of Stockweather by the attorneys for the defendants continued for some time thereafter, and after the District Attorney had announced that the alternate jurors were satisfactory to him, upon the completion of the examination, the court asked the defendants’ attorneys: “ Does the defense wish to challenge? ” The attorneys for the defendants thereupon separately stated that the alternates were satisfactory to them.

It does not appear from the record that the defendants had exhausted their peremptory challenges at that time. The Clerk’s minutes do not differentiate between challenges used in the selection of the first 12 jurors and those used in the selection of the alternate jurors. The minutes show that the defendants used only 28 peremptory challenges in all despite the fact that *592they had 30 peremptory challenges in the selection of the original jury and 6 challenges for the selection of the two alternates. The question put by the court upon the completion of the examination of Stockweather would seem to indicate that the defendants still had unused peremptory challenges. In any event, the question was broad enough to include both peremptory challenges and challenges for cause. The court’s question was an invitation to the defendants’ attorneys to request the excuse of Stockweather for cause, if in the light of his whole examination, they thought that a ground for challenge for cause existed. The defendants’ attorneys chose not to challenge Stockweather either for cause or peremptorily; instead, they affirmatively stated that the alternate jurors were satisfactory.

As a matter of fact, the defendants do not assert in their briefs upon this appeal that the failure to excuse Stockweather for cause was erroneous. Only one of the briefs mentions Stockweather and it does this only obliquely in arguing that it was error for the court summarily to excuse one Boot, a member of the original jury, who became ill and was replaced by Stockweather just before the ease was submitted to the jury. The argument is made that it was error to excuse Boot and that the error prejudiced the defendants because Boot was replaced by an alternate who was less favorable from their point of view than Boot. This argument is not mentioned in the majority opinion; presumably, it was rejected by the majority of the court. But out of this argument, the majority has constructed a new claim of prejudicial error which was not advanced in the briefs of either defendant. I think that the trial court would have been right in refusing to excuse Stock-weather for cause in the light of his whole examination, if a request for such an excuse had been made but, in any event, no such request was made upon the completion of Stockweather’s examination and the point is not available to the defendants upon this appeal.

2. The refusal of the trial court to charge lower degrees of homicide, was, in my opinion, correct. I believe that the rule which emerges from the cases on this subject, insofar as they are applicable to this case, is this: If, in the judgment of the trial court, there was no reasonable basis in the evidence for a finding that the acts causing the death of the decedent occurred otherwise than in the course of the commission of a felony, the court should submit the case to the jury as calling either for a conviction of a felony murder or an acquittal (People v. Stevens, 272 N. Y. 373; People v. Lunse, 278 N. Y. 303; People *593v. Flaltes, 7 N Y 2d 1038). The crucial question is not whether there was evidence in the case from which it could be found that the defendant had committed acts which could constitute a lower degree of homicide but whether there was evidence in the case which justified a finding that those acts had not occurred in the course of a commission of a felony. The only hypothesis suggested in the majority opinion upon the basis of which it could be found that the assault upon the decedent was not committed in the course of a felony, is that the attempt to escape “ may well have been abandoned ” prior to the striking of the second blow. This hypothesis has no basis whatever in the evidence. Indeed, no claim was advanced by the defendants’ counsel at any time during the course of the trial that it might be found that the felony had been abandoned and no request was made that the court submit any such issue to the jury. Neither is there any suggestion of the abandonment theory in either of the briefs of the defendants upon this appeal. A reading of the record demonstrates to a point of moral certainty that the blows were struck in a single, continuous assault, for the purpose of effectuating the defendants’ escape. They were an integral part of the commission of the felony of attempting to escape from prison.

It is true that the jury would have had the arbitrary power to find an abandonment, contrary to the evidence, if that issue had been submitted to it. Every factual claim raised by a defendant has to be submitted to the jury as a question of fact even though the evidence is so overwhelming against the defendant’s contention that in a civil case involving a similar issue, the issue would have been disposed of as a matter of law. But in determining whether to charge lower degrees of homicide, the court must decide for itself whether there is any basis in the evidence for the defendant’s contention. In our case, even if the question of abandonment had been raised at the trial, the court’s decision would necessarily have been that there was no basis in the evidence for finding that the felony had been abandoned before the assault was committed.

The existence of the arbitrary power of the jury to make a finding in favor of the defendant contrary to the evidence does not require or authorize the court to charge lower degrees of homicide. The lower degrees of homicide may be charged only in a case in Avhich a finding by the jury that the felony was not in progress Avould have a reasonable basis in the evidence and would not be an arbitrary exercise of naked power. (People v. Mussenden, 308 N. Y. 558.) While the Mussendencase was *594not a felony murder case, the analysis by Judge Fuld in that case, is directly applicable to felony murder cases. Judge Fuld took account of the arbitrary power of the jury (p. 563) ‘ ‘ to refuse to find any fact regardless of how clearly it may appear to a judge to have been proved” and he continued “ There is probably no way to prevent or guard against this, but certainly a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to forswear its duty and return a compromise or otherwise unwarranted verdict * * *. The principle has, accordingly, evolved that the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one ”. The determination of whether ‘ ‘ there is some basis in the evidence ” for the finding must be made by the court, for the purpose of deciding whether to submit lower degrees of crime. This may seem paradoxical since, as has been pointed out above, the jury would still be free to find that a felony had not been in progress, at the time of the fatal assault, even though there was no reasonable basis in the evidence for such a finding. But in that situation, the jury should be required to face up to the issue of convicting of felony murder or acquitting the defendant entirely; it should not be given the easy way out of convicting the defendant of a lower degree of homicide. As Judge Fuld explained (p. 562) in the Mussendencase, this paradoxical situation is “ an inevitable consequence of the jury system ” and of “ the jury’s power to dispense mercy ”, (p. 563) or, for any other reason, to find in favor of the defendant1 ‘ despite the evidence ’ ’ (p. 563). But the power of the jury to make finding in favor of the defendant, contrary to the evidence, in a criminal case cannot be allowed to determine the propriety of the submission to the jury of lower degrees of crime.

In the situation presented in this case, the court acted properly in refusing to submit to the jury any lower degree of homicide.

I therefore vote to affirm the judgments of conviction.

Williams, P. J., Bastow and Henry, JJ., concur with Goldman, J.; Halpern, J., dissents and votes to affirm in opinion.

Judgments of conviction reversed on the law and facts and in the interest of justice, and a new trial granted.

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