I think the degrees of homicide should have been submitted to the jury.
The defendants conspired with Kerwin to commit the robbery and they knew he had the gun. "There is no reasonable explanation of their going armed, other than that they intended to shoot any person who should obstruct the accomplishment of their crime or at least anyone who might seek to apprehend them or prevent their escape." (People v. Sullivan, 173 N.Y. 122, 132, 133.) As in that case, the deliberation and premeditation necessary to make out the crime of true murder in the first degree could well be found to have commenced "when the defendants started out on their predatory excursion." If, as the jury could also have found, Kerwin shot the police officer in fulfillment of his concert with the defendants to kill should killing be necessary to *Page 316 the attainment of their end, his willful act was theirs as well.
Hence, I cannot assent to the District Attorney's proposition that "while the three planned the robbery and acted in concert in the prosecution of that common enterprise, there was no concert of action in the commission of the homicide."
In People v. Cummings (274 N.Y. 336) the codefendant Lewis did the shooting, yet it was held that there should have been submission of the degrees of homicide in the case of Cummings. It is true that Cummings told Lewis to shoot, whereas in the present case we have only the inference of concert of all three to have Kerwin shoot their way out if necessary. I had supposed, however, that the purpose of the opinion in the Cummings case was to end the vexations resulting from appellate stress upon such fact distinctions, and I think we should adhere to that purpose in the interest of uniform administration of the law in capital cases.
The judgments should be reversed and a new trial granted.
CRANE, Ch. J., LEHMAN, O'BRIEN and HUBBS, JJ., concur with FINCH, J.; LOUGHRAN, J., dissents in opinion in which RIPPEY, J., concurs.
Judgments of conviction affirmed. *Page 317