153 N.Y.S. 237 | N.Y. App. Div. | 1915
We are not satisfied that defendant’s conviction of the crime of receiving stolen property, knowing it to have been stolen, should stand. Of the fact of defendant’s purchase of the stolen property from Goldberg and Kramer, who received it from the thieves, there was no question or dispute. He freely admitted it at the time of his arrest and testified fully as to the circumstances of the purchase at the trial. The vital question for the jury was whether he had guilty knowledge that the property had been stolen. The only direct testimony that he had was given by witnesses who were held by the trial court to be accomplices. No conviction could be based on their testimony unless “ corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” (Code Grim. Proc. § 399.) The accomplices were not prosecuted, but warrants for their arrest, or of the principal ones, were in the sheriff’s hands, but, by direction of the district attorney, were not executed pending the trial of this case. They were thus strongly tempted to try to earn immunity from prosecution for themselves by assisting to convict the defendant.
As the fact that the defendant had bought these goods of G-oldberg and Kramer, and had shipped them at the time and in the manner described by these two witnesses was not at all disputed in the case, hut had been testified to by defendant himself as a witness, and as defendant’s only ground of defense was that he bought the goods in good faith in the usual course of his business as a dealer in odd lots, remnants, etc., with no knowledge or suspicion that they were stolen goods, we think the jury may have been misled, by the part of the charge quoted, to believe that they were justified in finding from the circumstances of the shipment of the goods by defendant alone sufficient corroboration of the testimony of the accomplices that defendant had guilty knowledge that the goods were stolen, and thus that the shipment alone was sufficient to connect him with the crime.
There, was other testimony which the jury were properly instructed they might find tended to corroborate that of the accomplices, but its probative value in that direction was not
We are of opinion that the circumstances of the shipment of the goods do not in or of themselves afford sufficient corroboration of the testimony of the accomplices to justify a finding of guilty knowledge by defendant that he was purchasing stolen goods.
In view of defendant’s previous good character, we think the ends of justice will be promoted by another trial.
The judgment of conviction and the order should be reversed, and a new trial ordered. v
All concurred, except Kruse, P. J., and Robson, J., who dissented.
Judgment of conviction and order reversed, and new trial granted.