People v. Martin

Tlie- defendant was convicted upon an indictment of three counts, the first' charging burglary, the second larceny and the third assault, and appeals.

It appears that on the evening of the occurrence the defendant was out with three other men, Fuchs, O’Keefe. and Nestlin; that they had been together for part of the evening and had' been drinking, and that late in the evening they came upon the prosecuting witness, Koechier.. The latter testified that he was knocked down, and that raising the defendant’s disguise or mask, he recognized the defendant while the latter was assaulting him. Money and a watch were taken from him. The defendant offered evidence tending to show that the assault was committed by his three companions in spite of his efforts, physical and verbal,, to-prevent it.

The defendant’s companion, Fuchs, already convicted of this robbery, was called by the People and testified that the, watch was given him by Hestlin on October tenth, and that he did not, see the defendant on that day. The crime was committed between twelve and one o’clock on the night of October ninth. Fuchs was. permitted to testify on direct examination that, when he obtained the watch from Hestlin the latter said," Here is the watch Martin ” (the -defendant) “ gave me; go back -and give it to the. man, and just say Martin gave it to me.” A motion to strike o.ut the answer was denied and the defendant excepted. We think this ruling was prejudicial error. That the evidence was important as bearing upon the guilt of the defendant is clear, for it tended to. show that the -defendant’s participation in -the occurrence was that of criminal ratlier than that of good Samaritan-. That- error was committed in *717allowing the evidence to remain in the case is clear, for it was in the nature of a narrative or subsequent confession by one of the accomplices. Destlin’s statement to the witness Fuchs was made the next day after the commission of the crime, and at a' time when the purpose of the conspiracy, if any, had been attained. The proof in the casé tended to show a conspiracy between the defendant and his three companions to commit the robbery, but fell short of establishing any'conspiracy to dispose of the booty or to do any illegal act subsequent to the time of the commission of the actual robbery The ruling upon the trial was, therefore, error. (People v. Quinn, 123 App. Div. 682, and cases there cited.)

The judgment of conviction should be reversed and a new tria ordered. .

Woodward, Jenks, G-aynor and Miller, JJ., concurred.

Judgment and order of the County Court of Queens county reversed and new trial ordered.