Appeal from judgments of the Court of General Sessions of the County of New York, rendered January 14, 1960, convicting defendants of the crime murder in the first degree pursuant to subdivision 2 of section 1044 of the Penal Law.
Memorandum by the Court. Judgments of conviction affirmed. Although it may be cogently argued on behalf of defendant Ramirez that the court did not, in its charge, make clear to the jury that the portion of the testimony of the witness Walters before the Grand Jury — used to refresh the recollection of the witness or to impeach his testimony on the witness stand — was not to be considered as substantive evidence on the issue of identification, we do not consider this to be prejudicial error. The witness Walters did not identify the defendant Ramirez on his direct examination by the District Attorney. But he made an unqualified identification of him as one of the participants in the attempted hold-up of the bar in the course of his cross-examination by the attorney for the codefendant. As'we read this record, there is sufficient testimony, independent of the witness Walters, that identifies the defendant Ramirez as such participant. Both of these defendants, on their own admission, were in the premises at the time, of the homicide, each with a loaded gun in his possession. There is ample evidence to support the finding of the jury that the deceased "was killed by the defendants while they were engaged in an attempt to perpetrate a robbery.