186 A.D. 534 | N.Y. App. Div. | 1919
Lead Opinion
The defendant has been convicted of the crime of grand larceny in the first degree. He was accused of having stolen a special patrolman’s badge from the person of one Frank Gatto. Upon the trial the prosecution endeavored to prove that the defendant was accused by the complaining witness of having committed this crime and that in the face of that accusation the defendant remained silent. The witness apparently did not understand, or at least did not respond to the questions put to him in regard to the matter. He evidently thought that the questions referred to, or he desired to testify to, an identification of the defendant. It is true that the evidence which the district attorney desired to elicit occurred at an interview in which the complaining witness identified the defendant as the person who stole his badge. . In the course of this examination the witness testified to an identification of the defendant. I think this identification, however, was merely incidental and that it does not violate the rule laid down in People v. Jung Hing (212 N. Y. 393). If the evidence which the People sought to elicit was competent, its competency was not destroyed by the fact that it also elicited other evidence which was incompetent. (Hope v. People, 83 N. Y. 418; People v. Place, 157 id. 584, 598; People v. Orr, 92 Hun, 199, 203; Abb. Tr. Br. Crim. Causes [2d ed.], 411, 514.) The evidence which the People sought to elicit
The judgment of conviction should be affirmed.
Jenks, P. J., Putnam and Kelly, JJ., concurred; Black-mar, J., read for reversal.
Dissenting Opinion
I dissent. The defendant was a German. Except for that fact I doubt if he could have been convicted, for it would be difficult to establish a felonious intent to steal a special patrolman’s badge, which has little or no inherent value, unless it could be shown that the badge was of some use to the thief. The inference in this case was that this German, an alien enemy, stole a badge to obtain improper admission to the waterfront. In view of this aspect of the case, I think the record should be carefully scrutinized. The complainant, called as a witness, testified on direct examination that he went with a man named Marks to the station house and there he saw the
Judgment of conviction of the County Court of Kings county affirmed.