
    (July 13, 1956)
    The People of the State of New York, Respondent, v. Francis Craig, Appellant.
   Judgment of conviction and order reversed on the law and facts and a new trial granted. Memorandum: The verdict of the jury was contrary to the weight of the credible evidence. It well may be that this verdict was the result of the inadequacy of the charge. The only proof to connect appellant with the commission of the alleged crime of attempted burglary was evidence that he and two companions remained in an automobile parked some distance from the scene of the charged crime after three of his codefendants left the automobile and disappeared. It thus appears that appellant’s part, if any, in the attempt to commit the burglary was that of one who was aiding and abetting the active participants. The jury, however, was in no manner instructed upon the rules relating to this subject. The four defendants were considered in the charge as overt actors in the attempted burglary. The court failed to inform the jury as to the difference between one who commits the act constituting the offense and the other, like appellant, who could only have been convicted upon a finding that he aided and abetted in its commission. While neither adequate exception was taken nor proper request to charge was made by appellant’s counsel, we find the charge I o b,e so incomplete in this fundamental aspect as to require a new trial. If doubt remained as to the necessity of a retrial, it is removed by the statement made by the trial court at the conclusion of its charge that the jury had been patient and “ I think it has been an imposition on you and I regret it very much.” This remark could only have imparted to the jury the opinion of the court that the defendants were guilty and that the jury and the court had been imposed upon by the defendants standing trial and not pleading guilty. All concur, except Williams, J., who dissents as to the reversal of the judgment of conviction as to the first count of attempted burglary in the third degree and votes to affirm as to that conviction. (Appeal from a judgment of Niagara County Court, convicting defendant of the crimes of attempted burglary in the third degree and possession of burglars’ tools. The order denies a motion for a new trial.) Present — Vaughan, J. P., Kimball, Wheeler, Williams and Bastow, JJ.  