
    PEOPLE v. FITZSIMMONS.
    (Supreme Court, Appellate Division, Second Department.
    April 7, 1911.)
    Robbery (§ 24)—Evidence—Sufficiency.
    Evidence held insufficient to identify accused as a participant in a robbery.
    [Ed. Note.—For other cases, see Robbery, Dec. Dig. § 24.]
    Burr, J., dissenting.
    Appeal from Children’s Court, Kings County.
    John Fitzsimmons was convicted of an offense, and he appeals.
    Reversed, and new trial ordered.
    Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
    Ben W. Slote, for appellant.
    Peter ,P. Smith, Asst. Dist. Atty. (John F. Clarke, Dist. Atty., on the brief), for the People.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   THOMAS, J.

Two policemen arrested the defendant and another boy (White by name) near the corner of Atlantic and Buffalo avenues, in East .New York, and took them to the corner of Ralph avenue (about one block distant), from which neighborhood they had run away There they were confronted with the complainant, Mary Donohue, who, as she says, had had two glasses of beer, obtained she knows not where, and was under the influence of liquor, and who complained that one boy held her while the other took her watch and chain and money. She identified White as the one that took the articles, but as to the defendant said she did not know. According to her story, the robbery took place at Atlantic avenue and Williams Place, 1 y2 miles away from the scene of the above events. If the boys in question participated in the robbery at that distant point, their continued relation to her at Ralph and Atlantic avenues is something •of a mystery. But it is certain that White, with the defendant, ran away and that he did rob her somewhere; for, when brought back to her as above stated, he took the watch and chain from his shoe.

The only evidence against the defendant is that he ran away with White, who robbed her, and that, when caught, he (the defendant) told the officers that they were only fooling. The woman says that there were three persons engaged in the robbery. White is one, the person atta'cked by Parkinson, maybe, is another, and the defendant would make a third. Parkinson, himself intoxicated by his own confession, came out of a saloon and met Donohue in distress, and with her went across the way, where he assaulted a person, assuming that he was one of the depredators, and at the time saw two boys sitting in a doorway, neither of whom he identified, who ran away. However, these boys were the defendant and White.

The question is whether the defendant is proven guilty of this robbery beyond a reasonable doubt, from the fact that he was in association with White, and ran away, and made the statement that he did to the officers, as if conscious of it. . Although Donohue, in describing the scene, states that the defendant held her, she is evidently speaking upon the assumption that he was one of the two; for she did not recognize him at the time, and it is not presumable that she did so later.

A new trial should be ordered. All concur, except BURR, J., who dissents.  