ately shot Merrick, who was preventing the escape of one of the confederates, and was cautioned by that confederate, when about to shoot, not to shoot him. The jury were authorized to infer that this act was within the general purpose of the confederates. They may have desisted from their larcenous attempts, and yet the full purpose of the combination not have been carried out so long as one of the party was detained and held a prisoner." (See, also, People v. Wilson, 145 N. Y. 628.) In Rex v. Collison (4 Carrington and Payne Reports, 565) two private watchmen, seeing the prisoner and another man with two carts laden with apples which they suspected had been stolen, went up to them, and one walked beside the prisoner and one beside the other man at the same distance from each other, and while they were so going along the prisoner's companion stepped back and with a bludgeon wounded the watchman with whom he had been walking. The court said: "To make the prisoner a principal, the jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavor to apprehend them; but if they had only the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal." Thus, where several persons have combined together for the purpose of committing a felony, and upon an alarm they run in different directions, and one of them, being pursued, kills the pursuer, the others cannot be considered as principals in such act. (Rex v. White, Russell and Ryan's Crown Cases, p. 99; Jones v. State, 14 Ohio Circuit Court Reports, 35 and 47, touch on this point.) The case of People v. Knapp (26 Mich. 112, at page 115) in my judgment correctly states the rule: "It is undoubtedly possible for parties to combine in order to make an escape effectual, but no such agreement can lawfully be inferred from such a combination to do the original wrong. There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for anyone to do it. In other words, the principle is quite analogous to that of agency where the liability is measured by the express or implied authority. And the authorities are quite clear, and reasonable, which deny any liability for acts done in escaping, which were not within any joint purpose or combination." (See, also, Frank v. State, 27 Ala. 37, and 1 East P. C., § 67, p. 298.) The instructions given the jury in this case held Marwig for the acts of Bojanowski because they were jointly engaged in the robbery irrespective of whether or not they were acting jointly in the escape. The court said: "My view on the subject or my design on the subject was, if this jury are satisfied beyond a reasonable doubt that the man who did the killing, irrespective of what his intent may have been, was the companion of this defendant at the time the robbery was committed, or the attempted robbery, then any act on the part of the other individual, that is, the individual who did the shooting, is the act of this defendant, and he is just as responsible in the law as though he had actually done the same himself." It was a question of fact for the jury, as already stated, whether or not at the time of the shooting the two men were still conspirators and the violence used within the purpose and object of their combination. For the reasons here stated, the judgment of conviction should be reversed and new trial granted. HISCOCK, Ch. J., CHASE, COLLIN, and ANDREWS, JJ., concur; HOGAN, J., concurs in result; CARDOZO, J., not voting. Judgment of conviction reversed, etc. SUPREME COURT-APPELLATE DIVISION— THIRD DEPARTMENT. December 29, 1919. THE PEOPLE v. JOHN SANTORO. (190 App. Div. 56.) CONVICTION FOR ASSAULT ON PROSECUTION FOR MANSLAUGHTER-INJURY TO ANOTHER BY PISTOL SHOT-ISSUE AS TO PROXIMATE CAUSE OF DEATHCHARGE. Appeal from a judgment convicting the defendant of the crime of assault in the first decree after trial of an indictment for manslaughter. Evidence held sufficient to justify a conviction. Where the defendant deliberately fired two revolver shots into the body of the decedent, which took effect in the lungs in the vicinity of the heart, but there was a question as to whether the person shot would have died if he had obeyed the direction of his physician so that there was a conflict as to the proximate cause of death, it was proper for the court to charge that the jury might convict the defendant of assault in the first degree, for section 444 of the Code of Criminal Procedure expressly provides that upon a trial for murder or manslaughter if the act complained of is not proven to be the cause of death the defendant may be convicted of assault in any degree. APPEAL by the defendant, John Santoro, from a judgment of the County Court of Montgomery county, rendered against him on the 29th day of June, 1919, convicting him of the crime of assault in the first degree upon the trial of an indictment for manslaughter, and also from an order entered in the office of the clerk of said county on the 7th day of July, 1919, denying defendant's motion for a new trial. Christopher J. Heffernan, for the appellant. Newton J. Herrick, for the respondent. WOODWARD, J.: The defendant was charged with the crime of manslaughter in that on or about the 11th day of November, 1918, at the city of Amsterdam, he "did with force of arms in and upon one Felix Wrzeszenski then and there being, feloniously, wilfully, unlawfully and wrongfully, but without design to effect the death of said Felix Wrzeszenski fire off, shoot, explode and discharge said pistol or revolver at, towards and against the said Feliz Wrzeszenski, and did thereby wound, injure and penetrate the body of said Feliz Wrzeszenski, did thereby inflict upon the body of the said Feliz Wrzeszenski mortal wound or wounds, lacerations and penetrations the said Feliz Wrzeszenski soon thereafter died, against the form of the statute in such case made and provided." * * * and Upon the trial evidence was deduced from which the jury might have found the defendant guilty as charged. After being out for several hours the jury reported that they were unable to agree, but the court asked if they might not be able to agree, and at the request of the jury they were further charged in reference to assault in the various degrees. Later the jury returned a verdict of assault in the first degree; and a certificate of reasonable doubt having been issued, the defendant appeals to this court and urges that the verdict is contrary to the weight of evidence, and that the court erred in its charge to the jury. We are clearly of the opinion that there is ample evidence to sustain a verdict of guilty under the indictment; that the jury in the consideration of the evidence might properly have found that the defendant was guilty of manslaughter. The question is, therefore, whether the court erred in charging the jury that they might, upon the same evidence, find the lesser crime of assault in the first degree. There is no dispute that the defendant fired two shots at Wrzeszenski, which took effect in his lungs in the immediate vicinity of the heart, and that, as a result of such wounds, complicated perhaps by the decedent's failure to obey the instructions of his physician, death resulted some ten days after the shooting. The criticism of the charge is that under the provisions of section 1050 of the Penal Law it is necessary that the killing should be accomplished" without a design to effect death." While under the provisions of section 240 of the same act an assault in the first degree must involve the intent to kill a human being. But the criticism, as offered by the appellant, excludes an important element. Section 240 of the Penal Law provides that "A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death; is guilty * * * of assault in the first degree," and assault in the first degree is punishable by imprisonment for not to exceed ten years. (Penal Law, section 241.) It can hardly be doubted that the firing of a loaded fire arm, such as is involved in this case, at the person of another constitutes a felony, and the rule is that persons are presumed to intend the natural results of their own acts. "The fact" say the court in Thomas v. People (67 N. Y. 218, 225), “that the prisoner plunged this pointed knife into what he knew to be a vital part of the body must raise a presumption that he intended to take life. Its natural result would be to destroy life, and he must be presumed to have intended the natural consequence of his act just as if he had aimed at the heart of the deceased and fired a gun." The intentional firing of a gun or pistol at a human being, though such firing may be without intent to kill, is still a felony, and if we assume that the victim would have lived except for his own disregard of the physician's instructions (People v. Huson, 187 N. Y. 97, 98), the case would seem to be strictly within section 444 of the Code of Criminal Procedure, which provides that upon a trial for murder or manslaughter, if the act complained of is not proved to be the cause of death, the defendant |