
    SUPREME COURT—APP. DIV.—THIRD DEPT.
    May 4, 1910.
    THE PEOPLE v. FRED B. ROOF.
    (138 App. Div. 633.)
    Indictment—Robbery—Committed by Persons Jointly.
    An indictment charging two persons jointly with robbery, first degree, which alleges that the defendants at a certain place, “ each of said persons being aided by an accomplice actually present,” did unlawfully and criminally take certain property, is not demurrable on the theory that the accomplices should have been named. The fair meaning of the allegation is that the two defendants were actually present aiding each other as accomplices.
    Appeal by the defendant, Fred B. Eoof, from a judgment of the County Court of Chenango county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of June, 1909, adjudging the defendant guilty of robbery in the first degree; also from orders denying the defendant’s motions for a new trial and in arrest of judgment, and also from orders overruling defendant’s demurrer and permitting an amendment to the indictment.
    
      William II. Sullivan, for the appellant.
    
      James P. Hill, for the respondent.
   Cochrane, J.:

The defendant was indicted jointly with Myron Lamphere for the crime of robbery in the first degree, committed on one Stephen Knapp. The indictment alleges: “ That said Myron Lamphere and Fred Eoof on the 5th day of December, 1908, at the town of Hew Berlin, Chenango county, Hew York, then and there being, each of said persons being aided by an accomplice actually present, did unlawfully, wickedly, criminally and feloniously take certain personal property, to wit: The sum of twenty-seven dollars ($27.00), being in the form of a twenty-dollar bill, a five-dollar bill and two dollars in change, from the person of' one Stephen Knapp against the will of said Stephen Knapp and by means of force and violence done to said Stephen Knapp by the said Myron Lamphere and Fred Roof and by means of striking, choking and otherwise assaulting the said Stephen Knapp.” Then follow other allegations not necessary to this discussion.

The defendant Fred Roof was tried separately. At the beginning of his trial he was permitted to withdraw his plea of not guilty and to interpose a demurrer to the indictment. The district attorney against the objection of the defendant was permitted to amend the indictment so as to insert therein after the words each of said persons being aided by an accomplice actually present ” the following: “ The said Myron Lamphere being then and there aided by an accomplice actually present, to wit: Fred Roof, and the said Fred Roof being then and there aided by an accomplice actually present, to wit: Myron Lamphere.” After such amendment the demurrer was overruled, the plea of not guilty was restored and the trial proceeded resulting in the conviction of the defendant for the crime as charged in the indictment.

It is now urged that the demurrer to the indictment should have been sustained. In my opinion the indictment as originally framed was sufficient without the amendment. It was framed with reference to subdivision 2 of section 228 of the Penal Code, which section defines the crime of robbery in the first degree as an unlawful taking of property if accomplished by force or fear in a case specified in the foregoing sections of chapter 6 of title 9 of said Code when committed by a person being aided by an accomplice actually present.” Lamphere and Eoof* were the accomplices of each other. It was clearly competent to indict them jointly on the theory that each was actually present and aiding the other in the execution of the common purpose to unlawfully and forcibly take from Knapp his property. This we think was the reasonable and necessary implication of the indictment before the amendment. The clause therein, each of said persons being aided by an accomplice actually present,” might have been omitted without any impairment to the indictment and there would have been no doubt of an intention to charge Lamphere and Eoof with aiding each other and of being actually present with each other in the commission of the crime. Such clause was clearly surplusage and it was unnecessary that it should be alleged or proved. To hold otherwise would be an unwarranted sacrifice of substance to form. The indictment in fact meant that Lamphere and Eoof were both actually present aiding each other as accomplices. There could be no mistake in its meaning nor could the defendant be misled in respect thereto.

Ho indictment is insufficient nor can the trial, judgment or other proceedings thereon be affected by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.” (Code Crim. Proc., § 285.)

In People v. Munroe (190 N. Y. 435) it was said: “A grand jury framing an indictment under section 228, subdivision 2, of the Penal Code, providing that the robber must be aided by an accomplice actually present,’ is bound to plead that fact and point out the accomplice, if able to do so, or aver that his name is unknown to them.” This we think has been done in the present case. In that case as in this the two persons alleged to have been accomplices were jointly indicted. They were tried together, and one of them was acquitted, and, on the same evidence, the other convicted. It ,was held that if the evidence was not sufficient to convict one it was not sufficient to convict the other. No such question arises in this case. In the Munroe case the indictment was held sufficient, but the evidence was insufficient to sustain it.

The county judge in the present case carefully and clearly instructed the jury as to the necessity of proof required, and that without the existence of an accomplice actually present and assisting in the commission of the crime there could be no conviction in the first degree. There was no,attempt to prove, nor was there any suggestion, that any other person was engaged in the commission of the crime except Lamphere and Roof.

Discussion of the other questions raised is unnecessary, further than to say that we have carefully examined the evidence, and think that it fully justifies the verdict of the jury, and that no error was committed at the trial prejudicial to the defendant.

The judgment of conviction and orders must be affirmed.

All concurred, except Sewell, J., not voting.

Judgment of conviction and orders affirmed.  