
    The People of the State of New York, Respondent, v. Patrick Flanagan, Appellant.
    
      Crimes—evidence as to the prisoner being with a confederate—'statement by a district attorney to the jury of what he expects to prove.
    
    Where upon the trial of a person indicted for the robbery of a bank, evidence has been given which tended to show that a confederate had participated in the robbery and to identify both of the associates, although they were not seen together upon the day or occasion of the robbery, the People may show that about a week before the robbery the parties were together in a saloon in the same city for more than three hours, even though they were not then apparently engaged in any unlawful enterprise, as that fact tends to refute the claim of the prisoner that he and his alleged confederate were strangers and the consequent contention that they were not in complicity in the commission of the robbery.
    The fact that the district attorney, in his opening statement of the case to the jury, said that the prosecution expected to prove that the alleged associates “ went into the saloon of Alderman Schlobohn and acted in a very suspicious manner,” and that “they looked out of the window of the saloon, which was noticed by others as well as Mr. Schlobohn, and acted in a very suspicious manner," is to be regarded merely as the construction which the district attorney put upon the evidence which he proposed to introduce, and presents no prejudicial error.
    
      Appeal by the defendant, Patrick Flanagan, from a judgment of the County Court of Westchester county, rendered on the 21st day of June, 1897, convicting the defendant of the crime of robbery in the first degree, and also from an order denying the defendant’s motion for a new trial.
    
      John F. Brennan, for the appellant.
    
      George O. Andrews, Distt'iot Attorney, for the respondent.
   Bradley, J.:

On April 12, 1897, about midday, the Yonkers Savings Bank was subjected to a robbery of §4,420. The defendant was, by the indictment, charged with the commission of the crime. The main question on the trial related to his identity with the person who did it. The circumstances preceding and attending it were that, some minutes before twelve o’clock, a person came into the bank, presented a one-dollar bill and requested change for it. The cashier (Mr. Cobb) did not change his bill, and the person stepped away from the paying teller’s window, and the cashier supposed he went out of the bank, but whether he did or not does not clearly appear. At the time the request was made for the change, Mrs. Stewart, a customer of the bank, ivas in conversation with the cashier, and she shortly after left the bank. Her evidence is that the'defendant is the person who asked to have the bill changed, and that he did not go out of the bank ahead of her. Immediately after Mrs. Stewart left, another person (whose name, as it turns out, was Conners) came into the bank, engaged the attention of the cashier and had a conversation with him, in which he said that he had an appointment with a friend to meet him at the bank at twelve o’clock, and as he was not then there he would wait until he came in. After awhile he said he would wait no longer, and asked the cashier to tell his friend that Mr. Williams had been there to see him, and would return again at two o’clock. This so-called Williams then went out, and as the-cashier turned around and was proceeding forward, he saw a man standing in front of him, having his left hand, which was full of bank bills, up to his face so as to substantially conceal it from view, and holding in his right hand a revolver which he pointed at the cashier, telling him to neither move nor speak or he would be shot. The man moved backwards through the door in the counter, and then passed out of the door of the bank into the street. So far as appears, no person came into the bank, from the time the cashier was asked to change the dollar bill until the robbery occurred, other than Conners and the person who committed it. The circumstances proved warranted the conclusion that the person who asked for the change ivas the one who got behind the counter and took the money from the till of the bank, and that Conners, who was his accomplice, gave him the opportunity to do it by engaging the attention of the cashier! The cashier was unable to identify the person who presented the dollar bill for change, and when he had the stolen money in his hand, the A’iew of his face by the cashier Avas interrupted, partially at least, by the bills in his hand held in front of it". The cashier, however, examined several thousand photographs at police headquarters in the city of New York, without finding any that made any impression of similarity within his recollection of this person. He then went to the Pinkerton agency, where he saw the only picture that impressed him at all as that of the person who took the money, and it turned out to be the picture of the defendant. After liis arrest, he was identified by Mrs. Stewart as the person Avho presented the dollar bill and asked for change.

There was evidence introduced on the part of the defendant tending to prove that there was some confusion in her evidence bearing upon the question of the defendant’s identity, at his preliminary examination in the City Court of Yonkers. But the evidence of Mrs. SteAvart and that of some other witnesses on the part of the prosecution tended to dispel such apparent - confusion, and Avas such as to permit the jury to conclude that Mrs. Stewart had such an intelligent and well-sustained recollection of the person as to enable her to identify the defendant as the one who sought the change in her presence; and although the jury Avere not required to do so, they were by her evidence warranted in finding that he was such person.

The only evidence that the defendant and Conners were at any time seen together Avas that of Mr. Schlobohn, Avho kept a saloon about thirty feet from the police headquarters in the city of Yonkers. His evidence was that about a Aveek before the robbery the defendant and Conners came into his saloon, about half-past ten in the morning, and remained there until one o’clock, when he left for dinner; that they talked between themselves, looked out of the windows, looked at newspapers on the table, and so far as appeared had no apparent business with anybody else. The exception to the reception of this evidence was not well taken by the defendant’s counsel. Evidence had been given tending to identify both of them as the persons who had participated in the transaction of the robbery, although they were not seen together on the day or occasion when it was committed. It was competent to show that they were associates a short time before the occasion in question, although they were not then apparently engaged in any unlawful enterprise. It does not appear that they were seen together on the day of the robbery; and while the fact that' they were in the saloon was of itself of no special importance, it did tend to deny to the defendant the claim that he and Conners were strangers, and the consequent contention that they could not have been in complicity" in the alleged robbery.

In his opening statement of the case to the jury, the district attorney, in referring to the facts which the prosecution expected to prove, stated that “ they * * * went into the saloon of Aider-man Schlobohn and acted in a very suspicious manner; ” also that “ they looked out of the window of the saloon, which was noticed by others as well as Mr. Schlobohn, and acted in a very suspicions manner.” Exception was taken by the defendant’s counsel to the overruling of his objections to these statements. In view of the fact'that the evidence of their presence in the saloon was admissible, there was no prejudicial error in the statement so made by the district attorney. It was his construction of the evidence in that respect which he proposed to introduce. Whether his view of it was fully borne out by the evidence was for the consideration of the jury-

The witness Cobb had testified, without objection, on the subject of the photographs as above mentioned, and further that he had recognized the picture of Conners and had been cross-examined on ‘ the subject. On liis-re-direct examination he was asked whether he selected from the group of photographs one which, in his opinion, resembled one of the men who was at the bank. On answering in the affirmative, he was asked if he could then identify it as of either of those men, which he also answered in the affirmative, stating at the same time the number of the picture. Exception was taken by the defendant’s counsel to the reception of this evidence. Although the picture was marked for identification, it does not appear to have been offered in evidence. Nor does it appear which one of the men the witness thought the photograph referred to resembled. While there may he some doubt about the admissibility of the evidence, it added nothing to what the witness had before testified, without objection, as the picture was not put in evidence. The exception, therefore, requires no consideration.

None of the exceptions to rulings on the trial or to the charge or refusals to charge were well taken. The case was fairly submitted to the jury by the charge of the court, and the verdict was supported by the evidence.

The judgment and order should be affirmed.

All concurred, except Bartlett, J., not sitting.

Judgment and order affirmed.  