127 N.Y.S. 1059 | N.Y. App. Div. | 1911
- In a criminal action defendant is entitled to be confronted with the witnesses against him in the presence of the court (Code Grim. Proc. § 8), and to an acquittal in case of a reasonable doubt whether his guilt is satisfactorily shown (Id. § 389). These fundamental rules were not observed in the trial of this case. Defendant was charged with the crime of grand larceny in the first degree, in that on the 29th day of January, 1909, he stole certain jewelry, the property of his wife, Margaret Decker. If we concede that the evidence satisfactorily establishes the disappearance of the jewels, it fails to connect defendant with their loss. It is entirely circumstantial in character. Not only is it insufficient to exclude every other rational hypothesis except that of the guilt of the accused,
Defendant’s wife was the complaining witness. The evidence would indicate that the marital relation had not been characterized by perfect harmony. On the night in question, while defendant was absent from his residence, his wife, after cleaning her jewelry, wrapped it in two handkerchiefs, about these wrapped a towel, and then hid it behind a hamper which was used to hold her child’s clothing and which stood in a room adjoining her own bedroom. About half-past eleven her husband returned. She was then in bed and he prepared to retire. Shortly after doing so he and his wife quarreled, and she called the servant, a girl named Julia Eobinson, and asked her to go for a policeman. The complaining witness had previously quarreled with the servant and had notified her that at the end of the month she would discharge her. When the policeman arrived she and defendant and the servant went downstairs to meet him. After the policeman had succeeded in quieting the disturbance, defendant remained downstairs and Mrs. Decker and the servant returned to the apartment. Then a quarrel broke out between the maid and her mistress, so that when defendant returned upstairs the former was about to leave. Defendant went out with her, and about four o’clock in the morning they returned together. While they were gone defendant’s wife missed the jewels. There was no evidence that defendant knew the place where she was in the habit of keeping her jewels when they were not, as was usually the case, deposited in the storage warehouse. There was no evidence that defendant had gone into the room where they were hidden between the time of his arrival at home and his departure with the servant except on one occasion. He was then undressed, and went into the adjoining room to obtain his pajamas, which were hanging there. He could not well have then concealed the articles about his person, and his wife was watching him while he was in the room. His pajamas were hanging on the opposite side' of the room from that where the hamper stood. This room was connected with the bedroom occupied by defendant and his wife through a door which stood open during all the time that he was in there. It also connected with the private hall of the apartment through another door close to the place where the hamper stood.
In the morning, at defendant’s suggestion, he and his wife and the girl went together to the police station to report the loss. Defendant was then searched, but nothing was found upon his person. Mrs. Decker was then allowed to testify that while there in the presence of the officer the girl said: “ Why don’t you give Mrs. Decker back her diamonds ? I don’t want to go to jail, * * * you know where they are.” Again defendant denied knowing anything about them. The district attorney vainly endeavored to prove by defendant’s wife that he had taken this jewelry before. The only evidence of a positive character tending in that direction was her statement that during the previous summer she had lost a diamond sunburst, but she admitted that she had no proof that defendant had taken it. The same witness was also allowed to testify that the servant told her that when she and defendant were going downstairs together on the night of the quarrel “ he showed her the handkerchief — that is supposed to have contained the diamonds” and said “ that he had threatened her life if she betrayed him.”
With the exception of alleged conversations between defendant and his wife after his arrest, in which he begged her not to send him to jail, this is a fair summary of all of the evidence introduced by the People in this case. Upon such evidence the trial court should have granted defendant’s motion to "advise the jury to acquit, and this judgment of conviction cannot stand. The circumstances point quite as strongly, if not more so, to the servant, Julia Pobinson, as the person who stole the jewelry if it was stolen, as to the defendant; at least, the defendant’s" guilt is not established
The judgment of the County Court of Kings county should be reversed and a new trial ordered.
Jerks, P. J., Carr, Woodward and Rioh, JJ., concurred.
Judgment of conviction of the County Court of Kings county reversed and new trial ordered.