(dissenting). Appeal from a judgment convicting defendant of first degree murder committed while attempting a felony, and from an order denying his motion to set aside the verdict and for a new trial. The jury recommended, and he was sentenced to, life imprisonment. The indictment contains two counts, the first for the killing of John Yost by deliberate and premeditated design; the second charges that defendant feloniously shot and killed Yost while engaged in the commission of the felony of attempted robbery in the first degree.
Yost conducted a gasoline filling station and restaurant or tavern in a rural section of Erie County, in the town of Colden. He had a license permitting the sale of beer.
Defendant met Inez M. Heltz at a dance hall in Ft. Myers, Florida. She was a young woman who was in Florida with her father for a month or two. Defendant asked leave and was permitted to accompany them north in her car. They arrived *432in Lackawanna, Erie County, on April 26, 1946. He stayed at the Heltz residence until May 1st when he shot and killed John Tost. He fled, accompanied by Miss Heltz, whom he abandoned at Omaha, and was later apprehended in Phoenix, Arizona.
The defendant Woodley was about twenty-one years of age at the time of the shooting. He was a native of Ft. Myers, Florida. He says that he had gone through three grades in the junior high school and two of the three grades in the senior. His father and mother were divorced; she had remarried and lived in Florida; the father had remarried and lived in California. From an official medical record it appears that he enlisted in the Navy on March 12, 1943, and was discharged about August 15, 1944. He left his ship without leave early in 1944, was apprehended and sent to the medical Naval Hospital at Bethesda, Maryland, and a medical officer certified in a report contained in an exhibit placed in evidence by.defendant’s counsel: “ It is the opinion of the Board that this man is undesirable material for further retention in the Naval Service because of his basic personality defect. It is further the opinion that his ‘amnesia ’ was on the conscious or near conscious level, that he was mentally competent at the time of his unauthorized absence and is now competent to stand trial and punishment. He is competent to be discharged into his own custody without danger to himself or others and he is not likely to become a public charge. He is not fit for any type of duty.”
Coming north with the Heltzes he exhibited a pearl-handled .32 calibre revolver, but had no ammunition. Miss Heltz owned a .38 calibre revolver, old type, short barrel, nickel-plated, which she loaned or gave to the defendant. He obtained ammunition and used it on one or more occasions in target practice.
On the day of the shooting, he and Miss Heltz went riding in her car. He had the .38 calibre revolver. They stopped at the Tost restaurant and drank one or more bottles of beer, then continued on a leisurely ride through the countryside and returning, when near the vicinity of the Tost restaurant he inquired if she would like another drink. She declined. He drove the car a little ways off the road and some distance from the restaurant, went in and after fifteen or twenty minutes came out. Miss Heltz describes the transaction:
“ Q. Well, did you think you had been there 10 minutes or 15 minutes or 20 minutes? A. Oh, at least 15 minutes.
“ Q. And what next occurred? A. Well, I was sitting in the car —
*433“ Q. Speak up, please. A. While I was waiting I heard a loud noise, sound.
“ By the Court: Q. Heard what? A. A loud noise, like a chair being tipped over; and then he came out.
“ By Mr. Dwyer: Q. Woodley came out of the tavern? A. Yes.
“ Q. How did he come out of the tavern? A. He came running out of the tavern.
“ Q. He came running out of the tavern? A. Yes.
“ Q. What did he do? A. He opened the car door and got in.
“ Q. Did he say anything to you as he got in? A. He asked me the shortest route back to Buffalo. * * *
“ Q. When did he say something more to you? A. After we pulled away.
“ Q. What did he say then? A. The car was in motion. Something about my having been right.
“ The Court: What? The Witness: About my having been right about the fact that the gun might get him in trouble. # * »
“ Q. Well, he said something about your being right about what? A. He seemed upset, and his being upset I became upset, and I can’t recall his words, and I would not attempt' to quote anything that I wasn’t sure of.
“ Q. Well, tell us now just what you recall of what he said to you as you got in motion, pulling away from the tavern? A. Something to the effect about my having been right about his having the gun, that it would get him in trouble.”
After following cross-country roads the couple arrived at the Heltz home where the defendant obtained his clothing, the young woman borrowed $5 from a friend and drove with the defendant to Cleveland, selling the car there for $550, $200 of which she gave to him. They had talked of being married and going on to the Pacific coast. They went by train to Chicago, registered at a hotel as man and wife the following day boarded a bus, intending to go to Los Angeles, but stopped at Omaha where they again registered as man and wife, and remained one or more days. While she was out of their hotel room he left, and upon her return she found a note saying that he would write to her in a few days, and advising her that she “ Get a job and wait for me.” He says he went to California, stayed about a week with his father and that he left Los Angeles because he saw a telegram from his mother to his father, the substance of which he says was: “ Something about I was wanted for murder; or something like that, by the Buffalo police; *434if dad was to see me to tell me give myself up, arrange to surrender, or something like that. I don’t know. I have forgotten the main part of it.”
He then proceeded to Phoenix where he was arrested.
To sustain the theory of robbery, the People rely upon the defendant’s desire to obtain a gun and ammunition and his conversation, particularly with Pyanowski, an acquaintance he had made after coming north, who testified:
“ Q. What was the conversation you had with him about stickups ? Á. Well, he asked me if I would like to make some easy money.
“ Q. What did you say? A. Well, I asked him how he was going to go about getting it, then he pulled out a .32 pistol, I think it was chrome" plated, and he told me he would get it with this.
“ Q. Didn’t he also ask you if you knew any place where there was a large amount of money on hand? A. Yes he did.
<£ Q. Then he told you if you had heard of a sticbup in a certain town, you couldn’t recall the name, to keep your mouth shut about it? A. That is right.”
While at Phoenix he wrote two letters intended for his mother in which he says that he is a little hazy about what happened, and one contains the sentence, “ That was a foolish thing that I did and I’ll most likely regret it the rest of my life.” The other contains the following: “ Please forgive me for what happened. I still don’t know everything that happened. If there was a chance I’d give myself up, but I’d only serve a life term for nothing. * * * P. S. I’m not giving up. They’ll have to kill me first so don’t turn me in.”
Defendant’s conduct seems a mixture of avariciousness, viciousness and stupidity. On the second occasion, he went into this restaurant and waited until two customers had left. He knew that there was money in some amount in the till. He shot and killed the proprietor and fled. It is a bit difficult to discern the exact line of defense which was interposed in his behalf. A motion was made in advance of the trial at a Special Term “ for an order requiring the District Attorney and/or the Sheriff of Erie County to allow the defendant or his attorney to examine a certain statement and an alleged diary belonging to the defendant and to have possession of the originals or photostat copies thereof, and for such other, further and different relief as may he just.” In the affidavit by defendant’s counsel filed in support of the motion it is stated that he learned from the defendant’s medical history that he had received “ childhood *435brain injuries; that it is the desire of this deponent to have this defendant carefully examined by a Psychiatrist; that deponent has consulted a Psychiatrist and informed him of the facts herein alleged and that said Psychiatrist informed deponent that before making said examination he desires all facts, writings and statements made by the defendant and samples of his hand writing in order to arrive at an accurate conclusion as to the mental condition of the defendant This statement is supported by a physician. The motion was opposed and denied. It is understandable that a district attorney about to prosecute a defendant for murder would hesitate to turn over all the evidence which he had in his possession. A plea of not guilty was entered to the indictment. If his counsel had desired to test defendant’s mentality in advance of the trial, a plea of not guilty with specifications of insanity could have been entered (Code Grim. Pro., § 336). Had the defendant’s counsel at any time during the trial, before judgment, wished to have defendant examined as to sanity, a motion therefor could have been made. (Code Crim. Pro., § 658.) This was not done, and there was no request that the court charge concerning defendant’s mentality or his ability to form and carry out an intent.
Defendant asks a reversal on the grounds that there is not sufficient evidence to show an intent to commit robbery. The evidence in this regard is weak. However, with no other possible reason defendant shot and killed this elderly man and fled. He had talked in a silly and loose manner about holdups, and was quite obviously of weak mentality. His counsel in the argument and in the brief on appeal sought to raise the issue of mental capacity. Acquittals in the past where the defendant’s mentality was indirectly made an issue constitute a not too praiseworthy record in our judicial history. The Legislature, undoubtedly because thereof, authorized the trial of that kind of an issue at any time, separate and distinct from the criminal issue. This, defendant and his counsel elected not to do, and they should not be permitted to raise that collateral issue on this appeal.
Two technical issues are raised. The court stated in the charge, “ And in determining the weight you desire to give to the testimony of this defendant you may take into consideration that he stands here charged with a serious criminal offense.” This was excepted to by defendant’s counsel. The court had charged that the indictment raised no presumption of guilt and stated to the jury that they were the sole judges of *436facts, and all of the reasonable donbt and other protective theories with which we surround a defendant. The statement quoted is of doubtful propriety, but where the issue of fact as to the killing is hardly at issue, the error is not sufficient to require or permit a reversal.
The other technical objection involves a portion of the charge quite similar to that discussed in the main opinion in People v. Snyder (297 N. Y. 81). The Court of Appeals in the Snyder case reversed a conviction of murder by a vote of four to three. Three of the judges concurred in what is called the “ main ” opinion, the fourth judge concurring for reversal did so in a separate opinion which did not discuss the question which is raised on this appeal. Three judges dissented and voted to affirm. This objection has to do with the direction as to the order in which the jury should conduct its deliberations. The charge contains the following: “ You are, therefore, to determine, first, did the defendant intend to commit any robbery, and, if so, did he, in the course of such attempted robbery, kill the deceased Yóst? ”
The trial judge applied the same orderly procedure to his own charge for he stated earlier: “ I will first discuss felony murder, which is the charge which the People claim they have proven beyond any reasonable doubt. ’ ’
The court, carrying out his theory of order, later in his charge says, “ If you come to the conclusion, after considering the evidence, that the killing of the deceased did not occur while the defendant was engaged in the commission of an attempted felony, then you may consider the other forms of homicide. That is, the other count in this indictment, which charges premeditated murder in the first degree.” He later properly defined murder in the second degree, manslaughter in the first degree and not objectionably defined intent and premeditation, even the linguistic derivation thereof.
The charge by the court was fair and met all requirements of applicable statutes. Concerning the advice to the jury as to the order which should be adopted, it did not differ from hundreds of charges made in the past and not disapproved by the court of last resort. Defendant’s counsel made no objection on the trial. The Snyder case was considered by the Court of Appeals after this charge was made, and the defendant’s counsel now raises the issue. In the state of the record, under the divided vote in the Snyder case, this charge does not require a reversal, and if in fact erroneous, it is covered by section 542 of the Code of Criminal Procedure.
*437Defendant’s act resulted in the death of Yost. A jury considering the matter recommended mercy and life imprisonment rather than the death sentence.
The judgment of conviction should be affirmed.
Foster and Russell, JJ., concur with Heeeernan, J.; Hill, P. J., dissents in an opinion in which Brewster, J., concurs.
Judgment of -conviction reversed, on the law and facts, and new trial granted.