184 A.D. 767 | N.Y. App. Div. | 1918
Section 405 of the Penal Law, under which the conviction was had, provides as follows: “ A person who, under circumstances or in a manner not amounting to a burglary, enters a building, or any part thereof, with intent to commit a felony or a larceny, or any malicious mischief, is guilty of a misdemeanor.”
The charge is that the appellant unlawfully entered the building known as No. 36 West Twenty-fourth street, on the 23d day of September, 1917, under circumstances, and in a manner not amounting to burglary, with intent to commit larceny of the property therein of divers persons, and with intent to commit malicious mischief by unlawfully injuring and destroying said property and with intent to commit a felony of a nature and description unknown to the district attorney. The conviction was by a majority vote and on the information as charged. The appellant, therefore, stands convicted of the three counts specified in the statute. It is, I presume, "possible but I think not probable, that he intended to commit all of the crimes charged, for it would seem that to injure or destroy the property would tend to defeat the purpose of stealing it. However, since he has been convicted of all the crimes charged, if the evidence be sufficient to sustain the conviction with respect to one of them, he is not entitled to a reversal.
After the appellant was convicted his record was taken, preliminary to passing sentence, and it appeared that he had been previously convicted of larceny and had served twenty-two months in a penitentiary and twelve months and twenty days in the Etinira Reformatory. The appellant, however, did not take the stand and, therefore, the prior convictions were not and could not be considered on the question of his guilt.
The defendant is entitled to the statutory presumption of innocence until his guilt is established beyond a reasonable doubt (Code Crim. Proc. § 389), and his failure to.testify does not create any presumption against him. (Code Crim. Proc. § 393.) He is also entitled to the benefit of the general rule that the evidence must exclude to a moral, certainty every reasonable hypothesis of innocence and that the facts proved must be inconsistent with innocence and that an inference of guilt must be the only inference that can reasonably be drawn therefrom. (People v. Razezicz, 206 N. Y. 249; People v. Ledwon, 153 id. 10; People v. Bennett, 49 id. 137, 144; People v. Place, 157 id. 584; People v. Adrogna, 139 App. Div. 595; People v. Bonifacio, 190 N. Y. 150.) There is no evidence of any motive to commit malicious mischief. No pistol or other weapon or instrument or evidence of an intent to commit a crime was found on the defendant. What felony did he intend to commit? Was it murder, arson, assault or what? The evidence does not exclude every reasonable hypothesis of innocence or point only to his guilt. His conduct, particularly in view of his denials at the time óf the arrest, was suspicious, but it does not show that he intended to commit any one of the crimes of which he has been convicted. As was stated by Mr. Justice Finch in granting a certificate of reasonable doubt, he may have been waiting or endeavoring to see some one employed in the building or who he expected would be or come there. It does not appear but that he was acquainted with the superintendent of the building, or an engineer, or fireman or other person employed by the owner, and may have been desirous of seeing one of them.
Clarke, P. J., Page, Shearn and Merrell, JJ., concurred.
Judgment reversed and defendant discharged. Order to be settled on notice.