
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES LANGTON, Appellant.
    
      Criminal law —when an expression of an opinion by the judge, as to the weight of evidence, requires that a new trial he granted — right to convict of larceny on an indictment far robbery.
    
    Appeal from a judgment of tbe Oourt of Sessions of Richmond county, convicting tbe defendant of tbe offense of robbery in tbe second degree.
    Tbe defendant was accused of having seized and carried away tbe prosecutoi,’s watch. Tbe judge charged that tbe jury might find tbe defendant guilty of robbery in the first, second or third degree, or find a verdict of acquittal, but that they had “ nothing to do with the crime of larceny.” To this the prisoner’s counsel excepted.
    The court at General Term said: “ The conviction of this defendant should be reversed. In the early part of the charge to the jury, the judge delivered the following words: “ It seems to me that a chain of evidence has been woven around this defendant from which it is impossible for him to escape punishment.” .
    This was beyond the privilege of a trial judge to express an opinion on questions-of fact involved. The language did not leave the question to the jury to be decided on their own judgment, but amounted to a positive charge that it was impossible for the defendant to escape punishment.
    We incline to the opinion that the charge to the jury, that they had nothing to do with the crime of larceny, was erroneous. Before the Penal Code a conviction might be had for larceny under an indictment for robbery. -It is more doubtful now, but defendants are entitled to the benefit of all doubts on the trial, and we think be was entitled to a charge in this ease that the jury might convict of larceny.
    The conviction should be reversed and a new trial granted.
    
      George Gallagher, district attorney, for the People.
    
      Thomas W. Fitzgerald, Jr., and Daniel H. Fitzgerald, for the appellant.
   Opinion by

Babnaed, P. J.;

Pratt, J., concurred in the result.

Conviction reversed and new trial granted  