Supreme Court—General Term—first Department.

*December,*1886.

#### PEOPLE v. McINERNEY AND McDONALD.

Appeal.—Charge.

To justify a reversal by the appellate court under section 527, of the Code of Criminal Procedure on the ground that the verdict was against the weight of evidence, that the conflict of evidence made the case a conflicting or doubtful one; but it must be quite apparent that the verdict was against a substantial and preponderating weight of evidence.

*48Where it is undisputed that a crime Jias been committed oí which complainant was the victim, a statement by the trial judge in his charge, that the crime was one of the most atrocious known to the law, is not terror where thejudge expresses no opinion upon the guilt of the defendant and leaves all the facts to the jury under proper instructions.

Appeal by defendants Matthew Mclnerney and John J. McDonald, from a judgment of the Court of General Sessions of the City of New York, convicting defendants of robbery in the first degree.

The facts appear in the opinions.

*Howe Hummel,*for defendahts, appellants.

*Randolph B. Martine,*district attorney, *BeLancy Nicoll,*assistant, for the people, respondents.

Davis, P. J.

The appellants were convicted of the crime of robbery in the first degree. The point first presented on this appeal on their behalf is, that the verdict was against the weight of evidence and justice requires a new trial. This Court has authority to review the evidence, and if satisfied that the verdict against the prisoners “ is against the weight of evidence, or against law, or that justice requires a new trial, it may order a new trial whether any exception shall have been taken or not in the Court below.” Section 527, Code of Criminal Procedure. *People*v. *Hovey,*92 N. Y., 554 ; IN. Y. Grim., 283; *People*v. *Boas,*92 N. Y., 563; 1 N. Y. Crim., 287; *People*v. *Panniza,*MSS. Op. Brady, J.

We have given the evidence in this case a careful study, fully impressed with the obligation imposed upon us by the section of the Code of Criminal Procedure above cited, and feel constrained to say that we see no ground upon which our duty requires us to interfere with the verdict of the jury. The testimony was to some extent conflicting. That given by the defendants themselves, if believed by the jury, would have exculpated them from all charges of crime; while that on the part of the people strongly tended, if believed by the jury, to establish their guilt. It is no province of the Court to say on such a question of conflict that the jury were wrong *49in not accepting the evidence of defendants as true and therefore rejecting that given by the people. The Court must not, under the new rule of review given by section 527, above cited, cease to regard the important fact that the jury had the vast advantage of seeing all the witnesses sworn in the case, personally before them, and being able from their appearance, demeanor and manner of testifying to judge of their credibility, and to take those things into consideration in weighing their testimony, instead of the mere stenographic photograph of the words they uttered which is furnished to the Court. It is not enough to justify interference with the verdict that the Court on the case before it can see that the evidence made the case a conflicting or doubtful one, demanding the solution of a verdict to settle the doubt or *conflict;*but it must be quite apparent that the conflict has been settled by a verdict against the substantial and preponderating weight of evidence. We are not able, therefore, to interfere with the verdict on the first point of the counsel for the appellants.

It was said by Beady, J., in the *People*v. Panniza, (ubi. sup.), that “ justice requires a new trial whenever the Court can perceive in reviewing all the evidence, either that a verdict of acquittal should have been rendered or that the jury were led by reason of prejudice into convicting the defendant of a grade of offense altogether unwarranted by the evidence.”

In our consideration of the evidence in this case we - have not failed to give the appellants the full benefit of this rule.

Their crime of robbery (if committed by them at all) was committed by both acting in concert as accomplices each of the other. It was also committed, if at all, with a degree of personal violence which inflicted grievous bodily harm upon the person from whose possession the nroperty was taken.

If the jury found from the evidence that the crime charged in the indictment was committed by the defendants, they were justified in finding that it was committed with either or both of the attending circumstances which characterize it as rob*50bery in the first degree. 'A finding of the assault with intent to rob, committed by the defendants and consummated by actual robbery, can leave no room to doubt that they acted in concert as accomplices; nor that they inflicted the injuries suffered by the party robbed.

The second and only other point presented is that the recorder erred in charging as follows:

“ That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, -is a matter of some degree of astonishment. But that a crime was committed, and a crime of the character and description of the one I have just alluded to, there can be no question.”

Standing by itself this charge would present a very serious question. But correctly to understand the signification of the charge it must be read in connection with its context.

• In commenting upon a crime winch had been committed by some one, the recorder said “ A citizen quietly, peaceably and properly upon one of the public streets of this city is felled to the ground, and while prostrate assaulted with great brutality by some person or persons; and then follows what is above quoted and excepted, to wit, “ That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, is a matter of some degree of astonishment. But that a crime was committed and á crime of the character and description of the one *I have just alluded to,*there can be no question.”

Thus reading the part of the charge excepted to with its immediate context, shows that *the crime just alluded to*was the felling to the ground and the assaulting with great brutality, of a citizen quietly, peaceably and properly, upon one of the public streets. That this occurred, was not in dispute. The defendants themselves testified, that they were attracted by the outcries of Schwarzler the complainant, and hurrying to his relief found him felled to the ground by an assault committed by some person, indicating violence and brutality. It was in a public street, where he was standing quietly, peacefully and properly; and the learned recorder committed *51no error in speaking of the assault which no one denied had been committed by somebody, as a brutal and alarming crime.

The questions in the case were whether the defendants were the assailants, and whether the intent of the assault was robbery, and whether such robbery was in fact committed. Upon these questions the charge when recited as it appears in the case, to a portion of which the exception was taken, was not injurious to the defendants, nor in excess of legitimate comment by the Court upon undisputed facts of the case.

The result of our consideration is that the conviction and judgment must be affirmed.

Beady, J., concurs.

Daniels, J.

Two positions have been taken by the counsel for the appellants in support of this appeal. It is urged that the evidence did not warrant the conviction of the defendants and that the court erred in what was said concerning its effect in submitting the case to the jury. An examination of the testimony given upon the trial fails to sustain the objection taken that it did not justify or warrant the verdict of the jury. For while it is true that the evidence of the prosecuting witness was in some respects open to criticism, it was stil so far sustained as to justify the jury in believing that he testified to the truth. From his own evidence, as well as that of all the other witnesses who saw him, he appears to have been cruelly assaulted and beaten. And this he states was done by these two defendants, and after he was beaten, and before they completed their disposition of him, he testified that he felt a hand in his pocket. He did not, however, according to his evidence, realize that he had been robbed until the following morning, when he found that the silver coin in one of his pockets, concerning the amount of which he may according to other testimony have been mistaken, had been taken from him, and for want of that discovery and the effect which the blows upon his head had upon him, he failed to refer in his complaints in the Police stations to the alleged fact of his robbery. He did, however, on one of these occa*52sions assert that an attempt had been made to rob him, bnt this was evidently not then regarded as demanding any special consideration, because of the attention deemed to be demanded by the severe bodily injuries which he had sustained. After he discovered in the morning that the silver was gone from his pocket, then he did complain that he had been robbed, and the search which was made of the defendants at one of the stations, disclosed the fact that each of them had silver coin, of the general description of that mentioned by him to have been taken from the complaining witness.

That the defendants were the persons who assaulted the witness was positively stated by him, and other testimony indicating the absence from the locality of any other persons who probably made the assault, immediately after his outcry was made, tended to support the correctness of this statement. The persons, too, by whom he was assaulted, appear to have had no cause of quarrel with him, and could very well have been inferred by the jury to have made the assault as a step in the consummation of the crime of robbery. The defendants denied that they had either assaulted or robbed the complaining witness, but their evidence was contradicted in such a manner as very seriously to reduce its credit. This contradiction included an untruthful statement of the witness Mc-Inevney, concerning the number of his badge, and of the defendant McDonald as to the fact of his being a member of the Park police. So it was as to the fact that a light was made when the inspection of this badge took place, and as to the alleged circumstance of the defendants meeting near the hour of five o’clock in the afternoon. As to part of these circumstances there was a plain discrepancy between the evidence of the defendants given upon the trial and that taken upon their examination, and the discrepancy was not explained or removed by anything contained in the testimony of these witnesses. Neither their own evidence, nor that given in proof of their previous good character, deprived the testimony on behalf of the prosecution of so much of its force as rendered it improper for the jury to act upon it and convict the *53defendants. The probabilities of the case were strongly against them and they were not seriously reduced in weight by the omission of the complaining witness to make the broad charge contained in the indictment when he was at the stations to which these persons were taken on the evening of his assault.

In submitting the case to the jury 'the recorder presiding at the trial referred to the fact that a crime had been clearly shown by the evidence to have been committed, and to the statement made concerning it an exception on behalf of the defendants was taken by their counsel. To present this exception a part of what was stated to the jury has been separated from its context, and from that separation the argument has been presented in support of this exception. But by restoring what was said previous to the remark excepted to, it will be seen that the court did not express the opinion that the defendants were guilty or had committed the crime for which they had been indicted. What was said was that one of the most atrocious crimes known to the law was perpetrated against the person of the complainant in this case, and it was that crime alone that was made the subject of this and the immediately following reference. And that this witness had been made the victim of the commission of such a crime was clearly proved and established not only by the evidence on the part of the prosecution, but likewise by that given on behalf of the defense, by the witnesses who observed the appearance of the complainant. He was described by a witness apparently disinterested as “ in a terrible condition. His left eye was completely closed, his lips were very much lacerated,; and protruded, and as he leaned on the railing in front of the desk he was constantly spitting blood.” And that this was no exaggeration of his condition was quite evident from all the other testimony given upon the trial, and it fully justified what the court referred to as the fact that he had been most atrociously beaten. That it was not intended by what was said to influence, or control the action of the jury as to the crime charged in the indictment appears from the resideu of *54the charge of the Recorder. For in that he fully submitted the case to the jury leaving the question of the guilt of the defendants to be wholly determined by the view they should take of the evidence, and directing them in case of a reasonable doubt that an acquittal should follow, Upon this special subject of the opinion as expressed in the charge it was added that “ I have called your attention to some of the prominent features in this case, not, however, gentlemen, with any desire on my part to infringe upon your duty of passing upon the evidence, or injecting into the case any opinion whatever of mine upon the question of the guilt or innocence of the defendants. The responsibility rests upon you of determining all of the questions of fact that have arisen upon the evidence in this case, and if anything which I have said, although it was without a desire to affect your judgment upon the questions of fact, tended to intimate any opinion bearing upon the guilt or innocence of the defendants, it is your duty to disregard that opinion, and act upon your own judgment, uninfluenced by any opinion of mine, and to determine the question of the guilt or innocence of these defendants upon the evidence as you have heard it,” which fully corrected what had previously been stated, even if, by an enlarged construction, it could be said to include the robbery itself, or the defendants’ guilt. This case consequently is clearly distinguished from *McKenna*v. People, 81 N. Y. 360, and the authorities referred to in the opinion, and noted in the brief of the counsel. As the case was made to appear it was wholly for the jury to determine the question of the defendant’s guilt, and as they arrived at the conclusion adversely to them upon evidence plainly presenting this as a question of fact, and there was no error in the charge, the judgment should be affirmed.

Beady J., concurs.