
    The People of the State of New York, Respondent, v. John W. Bender, Appellant.
   Defendant has appealed from a judgment of the Broome County Trial Term of Supreme Court entered upon the verdict of a jury rendered against him on March 18, 1942, convicting him of the crimes of murder in the first degree (felony murder), with a recommendation of life imprisonment, kidnapping, with the recommendation of life imprisonment in lieu of death, and robbery in the first degree, as charged against him in the second, third and fourth counts of the indictment. Defendant and one Elling were jointly indicted in four separate counts. The first count charged defendants, in the common-law form, with murder in the first degree, in that on the 8th day of October, 1941, each aiding and abetting the other, and with a deliberate and premeditated design to effect the death of one Paul A. Skaritza, shot and killed Skaritza with an automatic pistol. The second count charged the commission of murder while engaged in the commission of a felony. The third and fourth counts charged kidnapping and robbery. At the close of the People’s case the first indictment was dismissed as to appellant. Elling was convicted of murder in the first degree and sentenced to death. Bender was sentenced to be imprisoned in Attica State Prison for the term of his natural life for the felony murder. For the crime of kidnapping he was sentenced to prison for an indeterminate term, the minimum of which would not be less than twenty years and the maximum his natural life. On the robbery charge he was sentenced to prison for an indeterminate term of from thirty to sixty years. The sentences were to run concurrently and not consecutively. On this appeal appellant does not challenge the validity of the convictions for kidnapping and robbery, but raises only the propriety of his conviction on the felony murder charge. The proof discloses that on October 7, 1941, Bender and Elling left Rochester on a trip to New York. They discussed a plan to thumb their way and to use an automatic revolver for the purpose of holding up.people and taking their cars. On October eighth they arrived at Binghamton. At that time Bender had the gun, which was fully loaded, in his possession. The defendants had fifty bullets for this gun. Bender having eighteen of them and Elling thirty-two. They solicited a ride from Skaritza and after they had gone a short distance they staged a holdup and relieved Skaritza of his money and the automobile. Elling undertook to drive the ear and Bender sat in the rear seat and held the gun on Skaritza. After they drove some distance they proceeded on to a lonely road. There the car was stopped and Elling opened the door and directed Skaritza to leave the car. Elling directed Skaritza to walk in front of him down the road and after they had gone a distance of about twenty-five feet, Elling struck Skaritza on the head with the gun and Skaritza feE on the side of the road. Elling then shot him "with the result that Skaritza died. The jury had a right to find on this proof that both defendants were engaged in the commission of the crime of robbery when the shooting occurred. The evidence amply sustains the verdict. Judgment of conviction unanimously affirmed. Present — Hill, P. J., Crapser, Bliss, Hefíernan and Schenek, JJ.  