The appellants were indicted for robbéry in the first degree, which charged them jointly with the taking, by violence, of a watch worth $23 from the person of one William Gavanagh. They were jointly tried and convicted, and now appeal from the judgment against them. No questions are raised upon this appeal, except that the evidence was not sufficient to warrant a verdict against either defendant because of its unsatisfactory character, so far as the complaint was concerned; and that the evidence was not sufficient to warrant a verdict against McElroy; and that, even taking all the evidence offered by the prosecution as true, it had no tendency to prove that he did anything to aid or abet in the robbery, or that he counseled, commanded, or induced Ryan to commit the crime. The facts of the case as they appear by the record seems to be correctly stated by the district attorney,in his brief, as follows: “On the morning of March 5, 1890, at about 7 o’clock, William Gavanagh, the complainant, was returning from an all-night vigil by the sick-bed of his brother-in-law, who lived in Thirty-Second street. As he passed down Seventh avenue, he stopped at a saloon on the south-west corner of Twenty-Seventh street and Seventh avenue, at the door of which saloon a woman accosted him, and asked him to give her a glass of beer. At this time complainant saw the defendants, Ryan and McElroy, together in the street. The woman and the complainant went into the saloon, and withdrew into a little room used for ‘ladies,’ where they remained drinking from a quarter to half an hour, when the woman disappeared, leaving the complainant alone. He then went out of the little room into the saloon, and as he did so saw the defendants together in a corner of the saloon. As the complainant was about leaving the saloon by the Twenty-Seventh street door, the defendant Ryan ‘ grabbed ’ the complainant by the collar, saying, ‘ I want that watch,’ and held him up against the jamb of the door, and took the watch from his person. While this was being done by defendant Ryan, the defendant McElroy was standing right behind defendant Ryan; Ryan remarking, as he took the watch from complainant, ‘ I got it.’ The defendants then ‘ skipped away,’ and hid together in a closet in the saloon. The complainant then went back into the saloon, and told the proprietor that his watch had been taken by ‘ these men,’ and that ‘ they ’
It is claimed upon the part of the appellants that, as the complainant was drunk at the time he was robbed, it was not sufficient to convict upon his evidence alone. It is admitted that he lost his watch, and that Ryan had it; but it seems to be urged that, because of his immoral conduct in stopping at this saloon to carouse with a strange woman, whom he had picked up at 7 o’clock in the morning, he was a proper subject for the operations of these desperadoes. It is further urged that as from the complainant’s evidence alone it appears that violence was used by Ryan in getting possession of the watch, and that, as he-was drunk, no reliance should be placed upon his testimony, and tlie defendants should have been acquitted. Some point is made in regard to the want of statement upon the part of the complainant that Byan had-taken his watch when he first made his complaint to the keeper of the saloon that he had lost his watch, and that it was only because of the suggestion of the bar-keeper that it was ascertained that Ryan had it. But the fact was undisputed that Ryan did have the watch, and that it was returned to the complainant, whether from the hands of the proprietor of the saloon or from Ryan himself is not particularly materiál. These two defendants were undoubtedly in the saloon at the time this watch was lost, and also at the time it was returned. The circumstances of the case clearly corroborate the statement of the complainant, and there is not the slightest particle of evidence tending to contradict anything he said as to the manner in which the watch was lost; and his subsequent action in going to the police station seems to indicate certainly a belief upon his part that the watch had been taken under the circumstances testified to by him. If his story was true, it' it clear that the watch was taken from him by Ryan through violence, which complies with the definition of “robbery.” As to the sufficiency of the evidence connecting McElroy with the offense, it seems to be sufficient to say that these two men were together; that while Ryan was committing the offense McElroy was standing by, giving him the assistance of his presence; and, as soon as Ryan declared that he had got it, they both fled, and hid together in a closet, showing a knowledge on the part of McElroy of what Ryan intended to do; and that he was present, ready to afford such assistance as might be necessary in order to accomplish the common purpose. It has long been settled that, to constitute one a principal in felony, he must be present at the commission of it, but that he need not be so near as to be an eye and ear witness of the criminal act; that his presence may be constructive, and that constructive presence is made out when it is shown that he acted with another in the pursuance of a common design; that he acted at one and the same time for the fulfillment of the same preconcerted end, and was so situated as to be able to give aid to his associate with a view to insure the success of the common enterprise. McCarney v. People, 83 H. Y. 413. But this aid and participation need not amount to more than watching to prevent a sur