111 N.Y.S. 1005 | N.Y. App. Div. | 1908
The defendant was convicted in June, 1907,. of grand larceny and now appeals both from the judgment, of conviction and from an order made in October, 1907, denying his motion for a new; trial on the ground of newly-discovered evidence. The. conviction was had. on the evidence of one Joseph Newman, the complaining witness, and of a policeman. The defendant did not testify in his own behalf and called no witnesses. The evidence, was to the effect that the defendant and , certain confederates induced Newman, by an appeal to his cupidity and credulity, to- produce for their inspection, the- sun of $1,000 in bills, and having obtained possession of the mone, for the .avowed purpose of counting it, ran away with it. The c idence was sufficient to justify a finding that the defendant and his onfederates acted in concert, both in tricking the complainant into producing and showing his money and in stealing it. The indictment is in the common-law form charging the defendant with feloniously taking vi et armis .the money of the complainant. The counsel for the plaintiff now urges -that the proof and the indictment are at fatal variance,, because the offense committed by defendant, if any, was an obtaining of money by trick and device, and not a common-law larceny. In making this point the counsel has put himself and the court to unnecessary trouble by stating, as if it were a part of the evidence. on the trial, the allegations contained in the affidavits upon which the motion for a new trial was made. Of course upon the appeal from the judgment we have to consider only the indictment and the evidence in support of it given upon the trial. That evidence tended to show that defendant and his confederates used a trick and. device to induce the complainant to produce his money, and intrust it to them for counting ; that in so intrusting it to defendant and his confederates the com
To justify the granting of a new trial upon the ground of newly-discovered evidence it must appear, inter alia, that the evidence if received at the trial would probably have changed the verdict. To so appear the evidence must bear upon its face such marks of credi
The judgment and orders appealed from are affirmed.
Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ. , '.
. Judgment and orders affirmed.