214 A.D. 277 | N.Y. App. Div. | 1925
In my opinion the verdict of the jury convicting the appellant of the crime of criminally receiving stolen property in the first degree was properly found, after a fair trial and was sustained by the proof. The order denying a new trial was likewise properly denied.
The learned trial court, with his customary fairness and care in his charges to juries, had already said to the jury in the present case in his main charge, speaking of the self-confessed thief Lindsay, with whom defendant had his dealings: “ Therefore, you should give his testimony just as fair a scrutiny as you give the testimony of the defendant, but keep in mind that he has admitted his moral guilt and legal guilt in those transactions. He is not technically an accomplice of this defendant. The law requires that an accomplice must be corroborated. Technically he is not an accomplice because the receiver is guilty of one offense and the thief of another, but, as a practical matter I take it that no jury would or should convict lightly on the evidence of a man who has admitted his guilt in the transaction, bub should carefully weigh his testimony and require it to be supported in some measure at least by other testimony or by the surrounding facts and circumstances of the case.”
This case was tried in November, 1922. At that time the rule as applied in this Department was in harmony with the law as enunciated by the trial court in its charge. (See opinion of Mr. Justice Smith and concurring memorandum of Mr. Justice Page, in People v. Kuppersclvmidt, 197 App. Div. 675, decided July 8, 1921.) But in that case, the law was thus laid down in February, 1924 (People v. Kupperschmidt, 237 N. Y. 463) that a charge by the trial court that corroboration of the thief was not required in order to convict one of criminally receiving stolen goods, because the crimes were different, was error. The court said (at p. 465): “ But under the Penal Law, section 2, one who aids or abets another in the commission of a crime is a principal, whether he has been previously guilty of an independent crime or not. The receiver cannot take with guilty knowledge unless aided therein by the act
Despite the persuasive force of the testimony as to the defendant’s guilt, this error in the charge was vital and too prejudicial to permit the affirmance of the judgment of conviction.
The order denying a new trial on the ground of newly-discovered evidence should be affirmed. The judgment of conviction should be reversed, for the error assigned in the charge; and as the statement is made and not disputed that defendant has served his sentence in the penitentiary, a new trial is not necessary, but he may be ordered discharged from custody.
Clarke, P. J., Merrell, McAvoy and Martin, JJ., concur.
Order denying new trial on the ground of newly-discovered evidence affirmed. Judgment reversed and defendant ordered discharged from custody. Settle order on notice.