
    The People of the State of New York, Respondent, v. John O’Brien, Appellant, Impleaded with Michael Walsh and Others, Defendants.
    Second Department, .
    December 29, 1905.
    New trial—when proper in criminal action on ground of absence of material witnesses — failure of defendant’s counsel to produce witnesses — when evidence not cumulative. .
    .- A new trial of .-a (criminal .action should be granted when it is shown that witnesses whose testimony would have been of value to the defendant were ■ not produced because,’ though subpoenaed, the defendant’s counsel, who had permitted them to depart on a postponement of the trial, was unable, to communicate with them by telephone as agreed, even though counsel did not call the attention of the court to, the absence- of the witnesses, nor move for a continuance or adjournment.
    
      Such evidence is not. cumulative when it is not of the same quality as that pro- - duced by other persons who were under a joint indictment with the defendant.
    Appeal by the defendant, John O’Brien, from a judgment of ' the Ootinty Court of Westchester county in favor of the plaintiff, rendered on the 18th day of October, 1904, upon the verdict of a jury, and also from an order entered in the office, of the clerk of thp county of Westchester Oil the 3d day of February, 1905, denying the said defendant’s motion for a new trial.
    
      Arthur J. Burns, for the appellant.
    _____ William A. Moore \J. Addi'són Yowng with, him on the brief], for the respondent.
   Jenks, J.:

The defendant and four other young men were tried together. The defendant and two others were convicted of robbery and the remaining two were convicted of assault in the third degree. The appeal is from the judgment and from an order denying a new trial on newly-discovered evidence. The learned county judge who presided at the trial and- who heard the motion has granted a certificate of reasonable doubt. At five o’clock on a July afternoon these young men, who had been drinking together, were walking in groups along a road in the city of Ton leers. They encountered Goldstein and one of them asked him for a dime, which Goldstein refused. Thereupon a quarrel arose and Goldstein was set upon. Donati came to Gold-stein’s help. Goldstein testifies that during the fisticuffs Terry put his hand in Goldstein’s pocket and took out some silver coins. There is no proof that this defendant aided, assisted or abetted Terry in any way, and hence his conviction must be based upon the finding that he took part in an assault upon Goldstein, which was committed for the purpose of the robbery, or which showed, at least, that element of force to that end which is necessary to constitute that crime. Goldstein testifies that the defendant was the first man who began the quarrel by slapping his face. In view-of these circumstances', any testimony of disinterested eye-witnesses might be of substantial, if not conclusive, -benefit to the defendant, if they should give creditable evidence that the defendant did not lay hand upon Goldstein. It appears by the affidavit that such eye-witnesses were in existence; that they stood ready to testify and will testify to this effect. It likewise appears that under the call of subpoenas left for them they attended when the case was set for trial, but it was not moved. On the day next set they xvere preparing to attend when the counsel for the defendant told them that he thought the ease would not be reached on that day, and that it would be sufficient if they, would be within call by telephone. They waited, but no call came. There is testimony that the telephone message was sent, but not communicated. It further appears that the counsel did not call the attention of the court to the existence of such witnesses, and that he neither moved for a continuance nor an adjournment when they did not appear. It is quite evident that the fact that the defendant did not receive the benefit of this testimony is not in any sense due to the fault of the defendant, and that the fault must be laid at the door of his counsel, if anywhere. The evidence was not strictly cumulative, inasmuch as it was not of the quality of that adduced, namely, that of. the other persons under joint indictment. The proof of the taking of the money is not very strong; there may be some doubt as to whether the violence was ■ that contemplated in -the definition of robbery;, and the jury evidently did not regard the quarrel as a.concerted plan to effect the robbery, because they convicted two of the party of assault only. The defendant was a resident of Yonkers for seventeen years, and of unimpeached character. I think that justice will- be best administered by ordering a new trial. In People v. Lane (31 Hun, 13, 15), in consideration of - the purview of section 465 of the .Code of Criminal Procedure, the court say: “Assuming the counsel to have known of the presence of the witnesses for that purpose, and that he omitted to call them, such omission’should not act to the prejudice of the appellant.”

Babtlett, Hookeb, Rich and Miller, JJ., concurred.

Judgment of conviction and order of the County Court of Westchester county reversed and new trial ordered.  