People v. Bilski , 84 N.Y.S.2d 567 ( 1948 )

Appeal from a judgment of the County Court of Queens County, convicting appellant of the crime of assault in the second degree. Judgment reversed on the law and the facts and a new trial ordered. While there was proof from which the jury could have found that appellant aided in and abetted the commission of the crime, even though not a participant in the actual assault (ef. Penal Law, § 2; 1 Wharton’s Criminal Law [12th ed.], § 246), the case was not submitted on that theory, but was submitted on the theory that appellant actively participated in the assault. The verdict, which we must assume is based on a finding of such participation by appellant, is against the weight of the evidence. Moreover, in instructing the jury, the trial court misquoted the evidence, in stating that there was evidence that appellant struck the complainant, Fitzgerald. Although no exception was taken, the error was prejudicial, and requires a reversal under the circumstances disclosed by the record. (Code Crim. Pro., § 527; People v. Di Cupillo, 271 App. Div. 1032.) Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.