(concurring):
I concur in the result. The defendant was convicted of robbery , in the first degree.- The mere fact that the punishment inflicted was such as might follow a conviction of robbery in the second degree does not warrant an affirmance of the conviction if it is determined that the defendant .was not guilty of robbery in the first degree as charged, but might have been guilty of robbery in the second degree. The question is whether the evidence justified the conviction of the crime charged, not whether it justified a conviction of a crime not charged and not found against the defendant, the.punishment of which is no greater than the one inflicted.
The evidence tends to show that the defendant, Barry and two *708. other men were upon the street together, and, when the complain- • ant approached them, one man seized his arms from the rear and another robbed him of eight dollars. The police came and the two defendants were arrested. An attempt was made to arrest the other two persons present, - but they escaped. The officer had seized -the coat of one of them, but he tore away leaving part of the coat with the officer. The defendants were strangers to the complainant. After his money was taken and the men let go of him, the complainant, says he saw their faces, and after the defendants were arrested he recognized them as the men. Upon search of Munroe one dollar and some small change was found in his trousers pocket, Upon a- second search four one-dollar bills were found in a small wad pressed in. one of the upper corners of the pocket, Upon a search of Barry but eighteen cents were found. The acquittal of Barry does not show the innocence of the defendant, and. is--not so inconsistent with the conviction of the defendant that the conviction must fall. The evidence is quite -satisfactory that Munroe is one of the .parties who took the complainant’s money. It. is' not clear which of the other three persons present were participants in the act. ' ¡Neither is it clear that all three participated in the act. The evidence sufficiently shows that aided by an accomplice , actually present the defendant- committed the act charged. The jury have found that Barry did not assist him, or ■ if lie did assist him was not responsible for his acts. The identity of the particular one of the three persons present who actually assisted.the defendant is not clear, nor is it very material.
In People v. Massett (7 N. Y. Supp. 839), relied upon by the appellant, it. is clear that - if,any crime was committed it was committed. by the three persons acting together, and it was held that an acquittal of the. two was inconsistent with the conviction of .the third, and the conviction.was, therefore, set aside. But .under the circumstances of this case the acquittal of Bany is not inconsistent with the defendant’s guilt. The conviction and judgment should, therefore, he affirmed. _
Judgment of conviction affirmed.