The opinion
Chief Judge Desmond (dissenting in part).
I vote to affirm the conviction of Hernandez as well as that of Agron. “ If the homicide was committed by one of several persons, in the prosecution of an unlawful purpose or common design, in which the combining parties had united, and for the effecting whereof they had assembled, all were liable to answer criminally for the act, and, if the homicide was murder, all were guilty of murder, assuming that it was within the common purpose. All present at the time of committing an offence are principals, although only one acts, if they are confederates, and engaged in a common design, of which the offence is a part” (Ruloff v. People, 45 N. Y. 213, 216-217 ; see People v. Sobieskoda, 235 N. Y. 411, 418 ; People v. Emieleta, 238 N. Y. 158, 163 ). The acts and statements of defendant Hernandez before, during and after the affray were such as to permit the inference drawn by the jury that he had taken part in the conspiracy to kill, and thus Was, under the law, equally guilty of murder.
*143 Upon appeal by defendant Agron: Judgment of conviction affirmed.
Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur.
Upon appeal by defendant Hernandez: Judgment of conviction reversed and a new trial ordered.
Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel ; Chief Judge Desmond dissents in a separate opinion.