125 N.Y.S. 976 | N.Y. App. Div. | 1910
This appeal is from a judgment of the County Court of Kings county convicting the defendant of the crime of grand larceny' in the second degree. The evidence upon which the conviction was had' was circumstantial. The rule is well settled that in' determining a question of fact from circumstantial evidence the facts proved must all be consistent with and jioint to the guilt of the accused, and must be inconsistent with his innocence. As was said in Shepherd v. People (19 N. Y. 537, 545): “ In such cases the circumstances themselves must be satisfactorily established, and they must be of such a character as, if true, to exclude,' to a moral certainty, every other hypothesis but that of the guilt of the accused.” Tested by this rule the evidence in the case at bar is insufficient to sustain .the conviction of the defendant.
Lillian Rosenblatt, the complaining witness, on December 14, 1909, went to the store of Abraham & Straus at .about a quarter to four in the afternoon, to do some shopping, and remained there until half-past four.'. She carried with her a bag, inside of which was a smaller bag containing her money. At the soda counter she was crowded and pushed by some-woman, not identified as the
While the evidence strongly tends to establish attempted crii-ni-'
There is another reason why this conviction must be reversed. Upon the trial the People were permitted to prove, over the defendant’s objection, that on November thirtieth, preceding the occurrence for which the defendant was arrested, one Mary Pryor was jostled while riding on an elevator in the store of Abraham & Straus by the defendant and her purse taken. This was evidence of a distinct and separate 'crime, in no manner connected with the crime charged in the indictment and necessarily prejudicial to the defendant. It does not come within any of the exceptions to the well-established rule that “ the State cannot prove against-a defendant any crime not alleged jn the indictment, either as a foundation for a separate punishment' or as aiding the proofs that he is guilty of the crime charged.” (People v. Spier, 120 App. Div. 786.)
It follows that the judgment of conviction must be reversed and a new trial ordered.
Woodward, J., concurred; Burr,- Thomas and Carr, JJ., concurred on the last ground stated in the opinion.
Judgment of conviction of the County Court of Kings county reversed and new trial ordered.