77 N.Y.S. 71 | N.Y. App. Div. | 1902
The defendant was indicted under section 550 of the Penal Code for having received stolen property on the 14th day of March, 1900, knowing the same to have been stolen. The property described in the indictment was two pairs of trousers, two coats, one feather boa and one finger ring. It was shown by competent evidence that the property was owned by one Alfred O’Connor whose house one Harry Hess burglarized about three o’clock in the afternoon on the 14th day of March, 1900, taking the property in question which was found in the possession of the defendant, a licensed pawnbroker, by the police, on the 27th day of April, 1900, in searching his pawn shop under a search warrant. This, however, was not sufficient to warrant the conviction of the defendant. The People were also required to show the criminal intent on the part of the defendant in receiving the chattels with knowledge that they were stolen. (People v. Ray, 36 App. Div. 389 ; People v. Schooley, 149 N. Y. 99.)
Hess, who had committed the burglary, testified on behalf of the People, and his evidence, if sufficiently corroborated under section 399 of the Code of Criminal Procedure, satisfactorily shows this remaining essential fact; and, although it was controverted by the testimony of the defendant, the facts and circumstances are such as to amply support the verdict of the jury. The testimony of Hess is to the effect that in the month of November, 1899, when he started “to do business” with defendant, after having been in defendant’s pawn shop two or three times, he said to defendant, “ I often get this here stuff,” and asked if defendant would “stand” for it, to which he says defendant replied, “Tes, I will stand for anything that comes along no matter what it is; ” that from that time to the fifth of April thereafter he had a series of transactions with the defendant by which he sold to the defendant property which he had stolen consisting of jewelry, silverware and clothing,
Substantially all of the property to which Hess’ testimony relates was found in the defendant’s possession at the time the officer executed the search warrant and identified by the owners who were then present, and it has been shown by their testimony that it was stolen. The defendant’s books did not show the full names and addresses of the pawners or the rate of interest charged as required by law. In testifying in his own behalf the defendant attempted to explain that this omission was to avoid his being imposed upon by people claiming to have lost their pawn tickets. The coats were entered in the defendant’s pawn book as having been pawned by “ Williams” on March fourteenth with other property identified as O’Connor’s but not included in the indictment; and the trousers were entered as pawned on the same day by “ Rogers.” The pawn book also showed a cape and bag which were stolen from O’Connor as pledged on March fifteenth under the name of “O’Neil.” The boa was found in a box in which was a muff with a ticket showing a pawn number and marked “ Potter,” and the pawn book showed that pawn number as property pledged on the nineteenth of April. The pawn book was in defendant’s handwriting and he gave no explanation of the manner in which or from whom he obtained the property, except that he denied ever having seen or had any trans
The ring was found in a tray wfitli thirty other rings in the show window where rings were placed for sale, and no tag showing the selling price or pawn ticket was attached to it, nor was any record thereof found on the defendant’s books. Prior to the fourteenth of March a ring and some silver which had been stolen from Mrs. Holzwaser, and which Hess testified that he stole and sold to the defendant, were discovered in defendant’s show window and he refused to let the owner see them, and subsequently claimed that he had bought them from a dealer, but, after an unsuccessful attempt to get the owner to pay what he gave for them, he surrendered them without pay. Some property stolen from Mrs. Stryker on January 8, 1900, and entered on the defendant’s books as pawned on the same day under the name of “ Sullivan,” was discovered four days later and identified by the owner who also identified Hess as the burglar, and Hess testified that he had stolen and sold it to the defendant. The defendant claimed that this property had been pledged for twenty-five dollars, which he demanded as a condition of giving it up, but upon being taken before a magistrate, he surrendered • it all prior to the fourteenth of March, except a watch which had disappeared after being discovered in his possession ; but before surrendering it, and while refusing to surrender because the thief was not captured, when told by an officer that the thief would be found and convicted, the defendant said, “You will never get him,” and upon the officer asking, “Do you know him?” the defendant replied, “ Yes.” Hess’ father testified that in an inter, view which he had with the defendant subsequent to the arrest of Hess, he asked the defendant, “ Do you know that you have put a
This brief review of the evidence shows, we think, beyond even a doubt, that the testimony of Hess is sufficiently corroborated to warrant the conviction of the defendant thereon. (People v. Mayhew, 150 N. Y. 346 ; People v. Elliott, 106 id. 292 ; People v. Ogle, 4 N. Y. Cr. Rep. 349 ; S. C., 104 N. Y. 511; People v. Rivello, 39 App. Div. 454.)
After Hess had testified to selling stolen property to the defendant on the 17th and 29th of November and 20th of December, 1899, and on the 8th, 13th, 18th and 29th of January, 28th of February, and 14th and 19th of March, 1900, without objection, the People were allowed to show, under the defendant’s objection and exception on the ground that it was after the date of the offense charged in the indictment, that Hess sold jewelry to the defendant on March twenty-second, silverware and jewelry on March twenty-eighth and jewelry on April 5, 1900, and a conversation at the time of the transaction on March twenty-second when Hess claimed to have seen a detective in the store in citizen’s clothes, and to have gone through the form previously agreed upon between him and defendant in the event of such a contingency. This evidence was competent. It was sufficiently proximate in time and tended to show guilty knowledge on the part of the defendant, as it showed a -series of transactions commencing with the corrupt agreement between Hess and the defendant by which the latter was to buy any property stolen and brought to him by Hess, and that they were connected because it appears that the plan of procedure originally agreed upon in case of the presence of a detective or police officer
Furthermore, all of this property was found in the defendant’s possession at the time the O’Connor property was found and was identified by the owners. It was all in court, identified and testified to and introduced in evidence, without objection or exception. In any event the evidence was merely cumulative and of no different nature or effect than that concerning the numerous prior transactions. We think that the guilt of the defendant was so clearly and satisfactorily established that the reception of this evidence, even if incompetent, does not require a reversal of the conviction.
The defendant’s counsel requested the court to instruct the jury that they could not convict the defendant unless they believed that the testimony of Hess was true. This the court declined to charge, and the defendant excepted. We think the exception is not well taken. Ho question was raised but that the evidence required the submission of the case to the jury. We do not understand that either in a civil or criminal case the court is required to analyze and separate the evidence and say to the jury that unless they believed the testimony of a certain witness or witnesses they must render a verdict in a particular way. That is not the province of the court, and, if it were the rule, would unduly protract the trial of causes, and make it very difficult to sustain any verdict. If counsel may single out the testimony of a particular witness and ask for such instruction, they may group witnesses or recite testimony and ask for such instructions.
The duty of the court in this regard is discharged by a general charge instructing the jury what facts it is essential that they should find in order to justify them in rendering a verdict in a particular way. (People v. Tuczkewitz, 149 N. Y. 240, 253.) Moreover, the request was misleading. The jury might infer from that and the subsequent request, to the effect that if they had any reasonable doubt arising from the testimony of Hess as to its truth it was their duty to acquit, that the request was aimed at the credibility of Hess.
The judgment should, therefore, be affirmed.
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment affirmed.