[p. 327] ANDREWS, J.
Samuel Michalow is a Russian, 57 years of age, who has been in this country for 27 years. He is engaged in the real estate business in a small way and has accumulated a few thousand dollars. Some time in the spring of 1919 he became acquainted with a young Russian named Lipp, who was employed in a butcher shop where the defendant dealt.
From the evidence produced by the people the jury might find that shortly after they met Michalow began to ask Lipp if he knew of any Italians who would help on a job, meaning by that a burglary or a robbery. Lipp replied that he did not; but Michalow talked with him frequently on the subject. At last he asked Lipp if he himself would do it. He (Michalow) had a woman in Yonkers who was 'leading him to a woman who had $3,500.' Lipp finally consented.
A man named Shadlidk, nicknamed 'John the Painter,' was a friend of Michalow. They had done business together, and they had discussed a niece of Shadlidk's [p. 328] named Anne Moscowitz, who, Shadlidk had said, was a skillful thief. She was also well known to Michalow. She had lately moved to Yonkers, and the woman to whom Michalow referred in his conversation with Lipp was evidently this Anne Moscowitz.
Early in September or late in August Michalow, Lipp, and Shadlidk went to Yonkers, and to her house. After some talk she took them to a tenement in which, on the second floor, a Mrs. Niznick lived in four rooms with a son and a boarder. Michalow pointed out this house, and gave some information about it and about Mrs. Niznick to Lipp. He told him, among other things, that he (Michalow) would get two other men to help in the robbery, and said that the three would bind and gag Mrs. Niznick and get the money.
The next Saturday Lipp met Michalow outside a saloon, and Michalow introduced him to Cohen and Givner. He told him that these were the two boys of whom he had spoken, and that they were to go together to Yonkers and do the job. The next Monday the three men did go to Yonkers and to the house of Mrs. Niznick. In a factory across the way, however, there was a strike, and policemen were in the vicinity. Therefore the time was thought inopportune. The three men went back to New York and reported the facts to Michalow, and Cohen told him and told the others that he would have nothing further to do with the crime. On receiving the report, Michalow told Lipp and Givner to go back after the strike was over. The two did go back on the 7th of October. Givner knocked at the door of Mrs. Niznick's apartment. He then entered, leaving Lipp outside. Ten minutes later he came out, saying to Lipp, 'All right; come in the house.' Lipp entered, and found Mrs. Niznick sitting in a chair in the front room. Givner said, 'All right, I got the money,' and then, turning to Mrs. Niznick, said, 'Stand up and walk in the bedroom.' Without resistance or remonstrance she did so. She [p. 329] also, without resistance, upon Givner's command, lay down upon the bed face downward. Givner then bound her hands and feet with the help of Lipp and gagged her. An apron or skirt was pulled over her head, and Lipp was sent to the doorway to see if anybody was coming. Givner went into the kitchen and took a gas tube. He said: 'I am going to make her sleep for a while, until we will be safe down to New York, because I've got my picture in the gallery.' Lipp told him not to do so, but Givner replied, 'Well, I want to be safe, because I've got my picture in the gallery.' The tube was then fastened, one end to a gas jet and the other leading to Mrs. Niznick's face through a hole or slit cut in the skirt. The gas was turned on and the two men left her. The result was the death of Mrs. Niznick.
The proceeds of the robbery was in Liberty bonds and cash, amounting to something over $1,200. Givner seems to have carried it away with him, but later he gave $600 of it to Lipp. Immediately afterwards he asked Lipp to return $15, saying that he was going to give Michalow $30. Lipp handed him the $15, and saw Givner go down into the cellar of the house where Michalow lived. He saw Micnalow present in the cellar, but did not see the money handed over. The hour of this transaction must have been about 5 o'clock on October 7th. Michalow later told him that Givner had fooled him as to the amount obtained by the crime. The next day Michalow handed Anne Moscowitz $40, and told her that 'This is the Niznick money,' and to keep quiet about the defendant's having been in Yonkers. On the 10th of October Michalow was arrested, and while under arrest he told Cohen to say nothing 'on him.' He also said that he did not know Lipp, Givner, Cohen, or Anne Moscowitz.
Michalow denies this story entirely. If he and his witnesses are to be believed, he was innocent of any participation in the crime. He claims that the people's [p. 330] witnesses have conspired to convict him and to allow the actual murderers to escape.
The evidence is sufficient, however, to present a fair question of fact to the jury, and we may not interfere with the result reached by it; but under the circumstances we must scrutinize with care the rulings of the trial court. Merely technical errors we may ignore. If, however, the substantial rights of the defendant have been affected, he is entitled to a new trial.
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'The killing of a human being * * * is murder in the first degree, when
committed: * * * Without a design to effect death, by a person engaged
in the commission of, or in an attempt to commit a felony, either upon
or affecting the person killed or otherwise.' Penal Law (Consol. Laws,
c. 40) § 1044.
'A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a 'principal." Penal Law, § 2.
Michalow, therefore, was a principal in the Niznick robbery. Was he 'engaged' in its commission? Clearly we think he was. A 'look-out' who does not enter the house is so engaged. That was the position of the defendant in People v. Usefof, 227 N. Y. 622, 125 N. E. 923. The facts before us require one further step. But to say that a man who induces or procures a crime, but who remains absent while it is being committed, is not engaged in it, while his tools are so engaged, would be a mockery. If so, it is immaterial whether one or all of the conspirators intended to use force, whether they were armed or unarmed, whether one or all were actually present when [p. 331] the murder was committed. The design to effect death is not an element of the crime. If in fact one did kill 'while engaged in the commission of a felony,' all are guilty of murder in the first degree.
* * *
The judgment of conviction should be reversed [on other grounds], and a new trial should be granted.
HISCOCK, C. J., and COLLIN, HOGAN, POUND, McLAUGHLIN, and ELKUS, JJ., concur.
Judgment of conviction reversed, etc.