Opinion
January, 1935.
Judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting defendant of the crime of assault in the third degree, reversed on the law and the facts, information dismissed and fine remitted. There is no proof that defendant took any part in the actual assault. His conduct was consistent with innocence. Furthermore, the information does not charge this defendant and his codefendants with acting in concert, but charges each with the commission of an actual, physical assault on the complainant's person. Therefore, Fink's announcement "Here they are coming" may not be taken as an act in furtherance of a common purpose to make an assault on the complainant. Lazansky, P.J., Hagarty, Scudder and Tompkins, JJ., concur; Davis, J., dissents and votes to affirm.