People v. Munroe

• Decision Date: 07 January 1908
• Citation: 190 N.Y. 435,83 N.E. 476
• Parties: PEOPLE v. MUNROE et al.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 435

83 N.E. 476

PEOPLE

v.MUNROE et al.

Court of Appeals of New York.

Jan. 7, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

George E. Munroe, jointly indicted with William Barry, was convicted of robbery in the first degree, and Barry was acquitted. From a judgment of the Appellate Division (119 App. Div. 704,104 N. Y. Supp. 675) affirming the conviction, Munroe appeals. Reversed, and new trial ordered.

The indictment reads as follows: ‘The grand jury of the county of Albany, by this indictment, accuse George E. Munroe and William Barry of the crime of robbery in the first degree, committed as follows: The said George E. Munroe, on the 16th day of August, 1906, at the city of Albany, in this county, with force and arms, the said George E. Munroe being then and there aided by an accomplice actually present, to wit, William Barry, and the said William Barry on the 16th day of August, 1906, at the city of Albany, in this county, with force and arms, the said William Barry being then and there aided by an accomplice actually present to wit, George E. Munroe, feloniously did make an assault in and upon the body of one William H. Colbert, and did feloniously and unlawfully steal, take and carry away from the person of the said William H. Colbert, against the will of the said William H. Colbert, by means of force and violence to the person of the said William H. Colbert, the following described moneys and personal property of the said William H. Colbert, to wit, eight dollars ($8.00), good and lawful money of the United States of America, of a kind and description to the grand jury unknown and a more particular description of which cannot now be given and of the value of eight dollars ($8.00).’ The defendant Munroe was convicted of the crime as charged, and defendant Barry was found not guilty.

Rollin B. Sanford, for appellant.

George Addington, Dist. Atty., for the People.

EDWARD T. BARTLETT, J. (after stating the facts as above).

The single question presented by this appeal is whether the verdict against the defendant Munroe can stand, his accomplice (Barry) having been acquitted. The indictment charges the crime of robbery in the first degree; that Barry was the accomplice of Munroe; also that Munroe was the accomplice of Barry. Section 228 of the Penal Code defines the crime as committed by a person: ‘(1) Being armed with a dangerous weapon; or (2) being aided by an accomplice actually present.’ Subdivision 3 has no application to the case at bar. The indictment was drawn under subdivision 2.

The complainant, William H. Colbert, residing in the city of Albany, was, on the 16th day of August, 1906, waylaid when proceeding homeward between 11 and 12 o'clock at night by the defendants, and possibly by two other men, and robbed of $8 in money. The complainant testified that the defendants approached him from behind, pinioned his arms, and robbed him of his money. The police were near at hand, and heard the ‘scuffle’ as the men ran away. One officer testified: ‘They were all together when I grabbed Munroe (the defendant) the four men together.’ Another officer swore that he attempted to arrest one of the two men who escaped. He said: ‘I tried to get one of the others, and grabbed his pocket, and he got away.’ The indictment makes no reference to the two other men. It is not clear that these men were actually present at the time the robbery was accomplished. A grand jury framing an indictment under section 228, subd. 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. In the case before us the...