46 N.Y.S. 913 | N.Y. App. Div. | 1897
Section 527 of the Code of Criminal Procedure makes it the duty of this court to “ order a new trial if it be satisfied that the' verdict
The defendant, who had been a manned woman for some eighteen years, and was the mother of three children, left her residence in Brooklyn, where she had lived some ten years, on the 30th day of January, 1897, to do some errands in the city of New York. She-was accompanied by her sister, who was also a married woman living-next door. Their husbands were both in the real estate business.. It was a cloudy day and the defendant took with her an umbrella. Their first stopping place was No. 1 Great Jones street, where the-defendant had some dental Work done by Dr. Kunz. The doctor-had been accustomed to do the dental work of the defendant and her family for about ten yeai's. Subsequently they went to Cammeyer’s shoe store on Sixth avenue, where both sisters made some purchases of shoes. The defendant concluded to carry her purchase,, as she wanted to make use of them the next day, but her sister had hers delivered. Then they went across the street to O’Neill’s to-purchase some embroidery, and the defendant 'went direct to the-embroidery counter and called for twenty-five yards of that material; but as there happened to be but twenty-six and a half yards in the piece that was shown her, she took the entire piece, paying for twenty-six yards. While she was examining the embroidery and paying for it, her packages were lying on the counter and her sister was standing in her immediate vicinity. The embroidery being paid for,, she took up her bundles and also an umbrella, and accompanied by her sister, passed out of the door, which was but a few feet from the counter where she had done her trading. The umbrella, however, was not hers, but O’Neill’s. Hers was a silk umbrella with a handle finished more perfectly than the ninety-eight cent cotton umbrella of O’Neill’s. Did she steal this umbrella, or was its taking a mere inadvertence?
According to the defendant’s testimony, when she passed out of the door, she asked her sister to help her with her parcels, and then discovered that the umbrella was not hers, and at once she said to
The defendant denied taking any' umbrella out of the rack, or removing a tag from the ■ umbrella, or that she saw a' rack of umbrellas. She said that when she entered the store to purchase the embroidery the first counter she came to, after passing through the door, was the embroidery counter; that she made her purchase, and while selecting it laid her parcels upon the counter'; that after the embroidery was done up and paid for, she picked up the bundles and the umbrella, which she supposed was the one she left home with that morning, and that the umbrella was leaning'up against the counter right- where her parcels were, and it was the only umbrella she saw in the store; that she first discovered her- mistake when handing a portion of her parcels to her sister,, to whom she said, " Eva, see, this is not my umbrella,” and at that moment the
There are men and women in every community whose word, were they placed in a situation similar to that of the defendant, would be accepted unhesitatingly as against such testimony as the People produced on this trial. Their reputations are so firmly established in the community in which they live that the charge that they had taken a tag off a ninety-eight cent cotton umbrella and secreted it partially under an outer garment would not be believed although, several detectives should testify to it. In the administration of criminal law the courts have ever attached the utmost importance to the'evidence of good character. “ Evidence of good character is not only of value in doubtful cases and in prosecution of minor offenses, but is entitled to be considered when the crime charged is atrocious, and also when the testimony tends very strongly to establish the guilt of the accused. It will sometimes of itself create a doubt when without it none would exist.” (Cancemi v. People., 16 N. Y. 501; Stevens v. People, 4 Park. 481; Commonwealth v. Webster, 5 Cush. 295.) “ No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the Jury and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the case is false or the witnesses mistaken.” (Remsen v. People, 43 N. Y. 8, 9.)
The defendant attempted to show by the method pointed out by law that she was a woman of good character, bearing a good reputation among her neighbors and acquaintances. A merchant, in whose employ she was for five years immediately preceding her marriage, supported in strongest terms her reputation for honesty and veracity. A captain of the police, in whose precinct the defend
Giving to her good character the weight to which it was entitled in a case like this, and considering the defendant’s testimony and that of her sister in the light of all the circumstances surrounding the occurrence, including, their movements., on that day, we reach the conclusion that a conviction ought not to have been had.
The judgment of .conviction should be reversed and a new trial ordered.
Patterson, Rumsey and Williams, JJ., concurred.
Judgment reversed and new trial ordered.