
    SUPREME COURT-APP. DIVISION—SECOND DEP.,
    Jan. 24, 1908.
    THE PEOPLE v. ALBERT MARTIN
    (123 App. Div. 715.)
    Evidence—Declaration of Accomplice.
    In a prosecution for burglary, larceny and assault in stealing a watch, it is error to admit evidence of an accomplice stating that the day after the commission of the crime another accomplice gave him a watch stating, “Here is the watch Martin (the defendant) gave me; go back and give it to the man, and just say Martin gave it to me.” Such evidence is in the nature of a narrative or subsequent confession by one accomplice and is inadmissible against the other, where, although there is evidence tending to show a conspiracy to rob, there is no proof of any conspiracy to dispose of the booty subsequent to the robbery.
    Appeal by the defendant, Albert Martin, from a judgment of the County Court of the County of Queens, rendered on the 22d day of March, 1907, convicting the defendant of the crimes of robbery in the first degree, grand larceny in the second degree and assault in the second degree, and also from an order entered in the office of the clerk of the county of Queens on the 10th day of August, 1907, denying the defendant’s motion for a new trial.
    
      John B. Merrill, for the appellant.
    
      Eugene N. L. Young [James A. Dayton and Ira G. Darrin with him on the brief], for the respondent.
   Hooker, J.:

The defendant was convicted upon an indictment of three counts, the first charging burglary, the second larceny and the third assault, and appeals.

It appears that on the evening of the occurrence the defendant was out with three other men, Fuchs, O’Keefe and Restlin; that they had been together for part of the evening and had been drinking, and that late in the evening they came upon the prosecuting witness, Koechler. The latter testified that he was knocked down, and that raising the defendant’s disguise or mask, he recognized the defendant while the latter xvas assaulting him. Money and a xvatch were taken from him. The defendant offered evidence tending to show that the assault xvas committed by his three companions in spite of his efforts, physical and verbal, to prevent it.

The defendant’s companion, Fuchs, already convicted of this robbery, was called by the People and testified that the xvatch was given him by Hestlin on October tenth, and that he did not see the defendant on that day. The crime was committed betxveen twelve and one o’clock on the night of October ninth. Fuchs was permitted to testify on direct examination that when he obtained the xvatch from TTestlin the latter said, Here is the watch Martin ” (the defendant) “ gave me; go back and give it to the man, and just say Martin gave it to me.” A! motion to strike out the answer was denied and the defendant excepted. We think this ruling xvas prejudicial error. That the evidence xvas important as bearing upon the guilt of the defendant is clear, for it tended to show that the defendant’s participation in the occurrence xvas that of criminal rather than that of good Samaritan. That error xx'as committed in allowing the evidence to remain in the case is clear, for it was in the nature of a narrative or subsequent confession by one of the accomplices. Hestlin’s statement to the xxdtness Fuchs xvas made the next day after the commission of the crime, and at a time when the purpose of the conspiracy, if any, had been attained. The proof in the case tended to shoxv a conspiracy betxveen the defendant, and his three companions to commit the robbery, but fell short of establishing any conspiracy to dispose of the booty or't'o do a-ny "illegal act subsequent to the- time of the commission of the actual robbery. The railing upon the trial xvas, therefore, error. (People v. Quinn, 123 App. Div. 682, and cases there cited.)

The judgment of conviction should be reversed and a new trial ordered.

Woodward, Jerks, Gayror and Miller, JJ., concurred.

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