53 N.Y.S. 86 | N.Y. App. Div. | 1898
The offense of grand larceny in the second degree, of which the defendant was convicted, was predicated upon the following facts:
The complainant, Dr. Forman, a physician engaged in the practice of his profession, about jive o’clock in the afternoon of November 30, 1897, stopped with his horse and buggy in front of a barber shop in the city of Auburn, tied his horse to a post and entered the barber shop to get shaved, and when he came out, shortly afterwards, he found that his horse and buggy were gone, together with the i’obe and blanket, medicine case and a whip which were in the wagon, all of the value exceeding $200. The doctor saw the defendant on the opposite side of the street at the time he hitched the horse, walking along in thé usual way and no one with him. While the doctor was in the ba2'ber shop the defendant unhitched the horse, drove off with it through the streets at a violent rate, stopped at saloons, hitched the horse or left him in chai'ge of some person and passed in, obtained di’inks, resumed his drive until about six-thirty p. m. of
The proof offered by the defendant was mainly- directed to showing this intoxication of the defendant. Charles-Gonboy, a brother of the defendant’s wife, was a witness for the defendant upon the trial. He testified that he heard of the taking of the doctor’s horse ; that at the time he was living in the same house with the defendant, and that he remembered his condition for several days prior to the day that the horse was taken. He was asked by the defendant’s counsel to state “ what that condition was.” The district attorney made a general objection to this evidence, which the court sustained. The defendant’s counsel then offered to show by this witness, “ who saw him daily,, the defendant’s condition in respect to intoxication, and being under the influence of liquor for several days prior to- the day that the horse was taken, and the same condition continuing down to within, a short time before it was taken. By the Court: I rule that you may introduce testimony tending to show a condition of intoxication on the day of the crime, but not before”’ to which the plaintiffs counsel excepted.
Witness then testified that on the day that the horse was -taken, and about three or -four o’clock in the afternoon, he'saw the defendant- come into a saloon in Auburn, and was asked by defendant’s
Several witnesses were introduced on the defendant’s behalf; persons who had witnessed people in a condition of intoxication, and they were asked to state the condition of the defendant on that day at about the time of the commission of the alleged crime as to intoxication or as to being drunk or sober, and the answer to these questions were rigidly excluded by the learned trial court upon the ground that the witnesses could only describe the condition, action, conduct or words, could detail what they saw or observed without drawing a conclusion as to the defendant’s condition; and the witnesses were not allowed to state their conclusions as to whether the defendant was intoxicated or otherwise. Exceptions were taken to the exclusion of this evidence in each instance.
These rulings present error of so important a character that it must lead to a reversal of the judgment of conviction.
As to whether a party at a given time is intoxicated, non-experts as well as experts can give an opinion. (1 Whart. Ev. § 451.)
The minute and peculiar appearances of a person, his acts, gestures, looks and other things which indicate a state of sobriety or of intoxication cannot be fully described, and a long line of cases in this State have established the proposition that the judgment or conclusion of an observer may be given upon the subject.
The Court of Appeals said in People v. Eastwood (14 N. Y. 566): “ A child six years old may answer whether a man (whom it has seen) was drunk or sober; it does not require science or opinion to answer the question, but observation merely; but the child could not, probably, describe the conduct, of the man so that, from its description, others could decide the question. Whether a person is-drunk or sober, or how far he was affected" by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct. Many persons cannot describe particularly; if their testimony were excluded, great injustice would freqilently ensue. The parties who rely on their testimony will
Whether the defendant was so far intoxicated.as not to be responsible for his acts in taking the horse and wagon was a closely contested question of fact upon the trial, and the defendant was entitled to have his witnesses present to the jury “ a living picture” of his condition.
The case cited is followed by and sustained in McCarty v. Wells (51 Hun, 171, 174); People v. Wright (136 N. Y. 630, 631); Ferguson v. Hubbell (97 id. 518); Felska v. The New York Central R. R. Co. (152 id. 344); Abb. Tr. Ev. 119, and cases cited.
We also think it was erroneous to exclude the evidence offered of the intoxicated condition of the defendant a few days before the commission of the alleged crime, leading up to the day of its commission. This evidence was competent as bearing upon his condition on that day. (People v. O’Neill, 112 N. Y. 362, 363.)
Prior to the enactment of section 22 of the Penal Oode there was some conflict in the authorities as to whether voluntary intoxication furnished an excuse for crime under any circumstances; but that section provides that, while no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by ■ reason of being in that condition, yet, where the purpose, motive or intent is a necessary element in constituting the crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the' intent with which the act was committed.
In larceny, an intent to deprive or defraud the true owner of his property, or of the use or benefit thereof, or to appropriate the same to the use of the taker, or of any other person, is essential to establish the crime. (Penal Code, § 528.)
The learned counsel for the appellant seriously urges the point that the learned trial court committed error in its charge to the jury in its statement of what the crime of grand larceny consisted. We have examined the exception taken to the charge upon this subject and do not find reversible error therein. The trial court
This statement of the law was correct with reference to the case before the court.
Affidavits were presented by the defendant to the trial court upon a motion for a new trial upon the ground of newly-discovered evidence. The motion was denied, and the. appeal herein brings up the question of the correctness of that decision. We. need not,, however, consider this appeal, as the conclusions which we have reached will result in a new trial of the defendant.
The judgment of conviction and- the order denying the motion for a new trial upon the merits and exceptions should be reversed and a new trial ordered.
All concurred.
Conviction, judgment and order denying motion for .a new trial ■ on the merits reversed and a new trial ordered.