157 N.E. 94 | NY | 1927
The indictment charges the larceny of two bracelets valued at $1,700, the property of Friedensohn Sakolncik. From his conviction as affirmed defendant appeals to this court on errors of law raised by exceptions.
Friedensohn Sakolncik were jewelers occupying a room on the eleventh floor of No. 71 Nassau street, New York city. Immediately next to their room was a suite of three rooms one of which was occupied by Gilfond Taylor, jewelers, and another by Harry Janowitz, a jewelry engraver. Defendant was employed by Gilfond Taylor as a repairer. The entrances to Friedensohn Sakolncik's room and to the suite occupied by Gilfond Taylor and by Janowitz were separated by a distance of six or eight feet. About eleven-thirty o'clock on the morning of June 16, 1925, Friedensohn delivered the bracelets to Janowitz for engraving. He engraved them as directed and about one o'clock in the afternoon of the same day put them and his bill in an envelope, handed them to defendant and asked him to take them next door to Friedensohn's shop. Defendant took the package, left Janowitz's room and in a minute or two returned. Nothing was said about the bracelets. About twenty minutes later defendant was sent on another errand, this time outside the building, and shortly returned after performing it. At two o'clock Sakolncik went to Janowitz to inquire where the bracelets were. In the presence of Sakolncik, Swirsky and Horowitz, defendant was questioned by Janowitz. What had he done with the bracelets? Hadn't he delivered them? He searched his *230 pockets, lifted his hands to his head, tore his hair and exclaimed: "I don't remember what I did with them, O, my God what did I do?" At the trial he asserted that he did not remember what he had done with the bracelets or where he had put them, whether he had dropped them in the hall or left them on the desk. He denied that he had stolen them or that he had given them to some one in the hall. He claimed to have suffered from a severe headache the night before and to have been depressed and absent minded on the day of the disappearance of the bracelets. At the same time he recalled many incidents of the day and did not pretend to have been afflicted with any form of insanity.
No court or judge may say, as matter of law, that defendant's evidence is false. It may, perhaps, be true. His credibility was, of course, exclusively for the jury. An acquittal based upon the existence of a reasonable doubt could not, as matter of law, be deemed utterly unreasonable. The jury had the right to take into consideration the fact that defendant had frequently been intrusted with valuable jewelry, that Janowitz's request to deliver the envelope to the shop next door might have impressed defendant no more than many other casual incidents of daily routine and they could have found that in his inefficiency caused by depression he was inattentive to his work and really did forget. The jury ought to have been left free to ask itself and to answer the question whether this simple errand created any deeper impression upon defendant's memory than the mailing of a letter or any other petty incident of the day's work. Answers to these questions are included within the function of the jury and not of the court.
The judge's repeated comments and his charge assumed the falsity of the defense. The practical effect of them may be viewed as morally depriving the jury of its freedom of action and as coercing it into reaching such a verdict as perhaps it might not otherwise have rendered. The *231 respective duties of the court and the jury are clearly defined. Questions of fact are for the jury, and the court must, if requested, inform the jury that they are the exclusive judges of all questions of fact. (Code Crim. Proc., sections 419, 420.) While verbal compliance was had with these fundamentals, their essence was destroyed. The court took into his own control the disposition of defendant's credibility. At one stage of the trial he remarked: "I do not think the jury is going to be very sympathetic." On another occasion his comment on defendant's testimony was, "You cannot slip anything like that here," and "I can readily see the motive of that." Satirically he assured defendant's counsel: "I am going to ask the jury to believe his story * * *. You said yourself you do not know whether he was telling the truth to you; if you are in doubt about it, what are you going to say to the jury?" "If your contention is quite right, every merchant in this city would be required to have a mental examination made of an employee. In other words whether he was aphasic or whether he was something else, before he could be held for criminal responsibility, that he stole the contents of an entire shop. * * * I must say once more that is perhaps the most unique defense that I have ever heard interposed." In his charge he stated to the jury: "Subterfuge will not go in this court. Absurd excuses should not govern a jury. I must say that the defense interposed is extraordinary." "Can a man come into this court and hoodwink a jury, bamboozle twelve men and say that he does not remember what happened, because he had headaches and other ailments that have been described here? If you feel that you should say `not guilty' upon the testimony that has been introduced or `not guilty' arising out of a reasonable doubt, that is your privilege." After the close of the charge, the court in passing upon the numerous exceptions noted by defendant observed that the jury "can disregard pretty much everything I said, *232 if they see fit." He did go through the form of instructing them respecting the presumption of innocence and defendant's right to the benefit of a reasonable doubt arising from the evidence, yet he coupled these instructions with an exhortation not to have justice made ridiculous, held up to public ridicule. He warned against sympathy and advised that reasonable doubt must be cautiously exercised.
The question whether defendant had a fair trial is primarily, at least, one for the trial court and secondarily, for the Appellate Division. If no error of law is presented by exception the judgment must be affirmed here. The mere intimation by the trial judge of an opinion on the merits of the case does not by itself constitute such an error of law as justifies reversal by this court. (Hurlburt v. Hurlburt,
The judgment of the Appellate Division and that of the trial court should be reversed and a new trial ordered.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur.
Judgment reversed, etc. *234