
    The People of the State of New York, Resp’ts, v. Eugene O’Hara, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Cbiminal law—Indictment.
    Upon the trial of a person under an indictment charging him with attempting to commit the crime of robbery in the first degree, the jury, upon the evidence, found a verdict convicting him of an attempt to commit the crime of robbery in the second degree. Held, no error.
    Appeal by the defendant from a judgment of the court of general .sessions of the peace, in the city of New York, entered upon the verdict of a jury, convicting him of an attempt to commit the crime of robbery in the second degree, upon an indictment charging an attempt to commit the crime of robbery in the first degree.
    
      John B. Fellows, district attorney, and McKenzie Semple, for resp’ts; Frank J. Keller, for app’lt.
   Macomber, J.

The question presented by the testimony was, whether the defendant, who was jointly indicted with two others, attempted to rob one Michael Rooney, or whether it was a street brawl only, participated in by the three persons indicted, on the one side, and Michael Rooney and a woman on the other.

Rooney being accompanied by a young woman whom he had known in Ireland, was according to his own story assaulted in the street, and both he and his companion were knocked down, either by this defendant or by his comrades. While upon the ground, one of the men present attempted to put his hand into the complainant’s pocket, while he was-being held by the man who had just felled him. Rooney had in his pocket at the time, cash amounting to thirteen pounds sterling. The money was not lost or taken away, for the police interfered and arrested all the parties.

The evidence of officer Henry Grieg, of the Twenty-ninth precinct, corroborates positively the testimony of Rooney, and of Annie Smith, his companion, as to the assault and to the cry of “Police, thieves, robbers,” and the like.

The witness for the defendant. John McGrath, one of the party, saw the man knocked down, but did not see anybody strike the woman, and he says that he did not see anybody stand over the man when he was down. He also adds that he did not see whether they went near the man after that, or not.

This evidence was submitted to the jury in an impartial charge of the judge, and under it, in our judgment, the jury was fully justified in the verdict which was rendered. There were no exceptions to the rulings of the_ judge during the trial or to any part of the charge to the jury.

The judgment of conviction is affirmed.

Van Brunt, Ch. J., and Bradt, J., concur,  