40 N.Y.S. 107 | N.Y. App. Div. | 1896
The defendant was convicted in the Court of General Sessions of the Peace in and for the city and county of New York of the crime of burglary in the second degree, a second offense, and from the judgment of conviction and an order denying a motion for a new trial, this appeal is taken.
The indictment upon which the defendant was brought to trial contained three counts: One, setting forth that the defendant broke into and entered the dwelling house of one Frances M. Barnes in the city of New York on the 28th day of December, 1895, in the night time, with intent to steal property belonging to Mrs. Barnes, and that he was assisted by a confederate, one William King. The crime was charged as a second offense. In the second count the defendant was charged with grand larceny in the second degree, as a second offense, and the alleged crime consisted of stealing jewelry belonging to Mrs. Barnes at the time and place designated in the first count; in the third count he was charged as a second offense with receiving stolen goods, being the same property as that referred to in the other two counts of the indictment. The circumstances
That the house was entered and the jewelry abstracted and carried away was clearly proven, and, upon conflicting evidence, the jury found that the two diamonds were part of the property stolen from Mrs. Barnes. The principal contest in the case was over the identification of these stones. At police headquarters Mrs. Barnes did not fully recognize them at first, and could not identify them, but she explained at the trial that it was in consequence of the light at police headquarters being insufficient, it being in the night time; and she stated her reason for not being then sure ■ of their identity, viz., that she would not risk a positive statement until she had the opportunity to examine them by daylight. But she did positively identify them at the trial. It appeared in evidence that a few days prior to the burglary Mrs. Barnes had given two diamonds to a diamond merchant, a Mr. Mather, to be reset. She identified tliem at Mr. Mather’s store in Maiden lane, whither they had been sent' by the police authorities. Mr. Mather, upon being called as a witness for the prosecution, and being shown the round and square stones to which reference has been made, positively recognized them as the two diamonds he had received from Mrs. Barnes, and which he had returned to her about the twentieth of December. Dpon this testimony of the positive identification by the diamond mer
But it is strenuously claimed that the evidence in- this case fell •short of what the law requires, in that the prosecution failed to show that the possession by "Wilson of the round diamond was an exclusive possession ; and that all that was proven, was that it Was found secreted in a bureau drawer in his lodgings. It is true that the courts in dealing with this subject, of the possession by a person of the fruits of a crime being evidence of such a character as throws upon the possessor of the property the obligation of showing how he came by it, have said that exclusive possession of the whole or some part of stolen property by the prisoner, shortly after the theft, is sufficient when standing alone to cast upon him the burden of .explaining how he came by it, or of giving some explanation of that possession, and that no presumption of guilt can be raised from the possession of stolen property except where the possession is conscious and exclusive on the part of the defendant, and that where there are no other circumstances to connect the accused person with the
Upon the trial it appeared that during the search made in the defendant’s lodgings a great many different tools of various kinds were found in a drawer of a washstand in one of the three rooms of which those lodgings consisted. The only persons who had constant access to these lodgings were the defendant and the two women referred to. It is not to be presumed that any one could enter and leave these lodgings. The tools were, some of them, such. . as might he used in the perpetration of a burglary, and others were only such as might he used by mechanics in their work, or, as ik claimed by the defendant, might he ordinary implements used by persons who ride bicycles.
' Now if by. this instruction it were meant that the tools might be taken into consideration in connection with any other crime, of course, it was error, but the whole of this part of the charge is susceptible only •of the meaning that the tools were not to be taken, into consideration, except in connection with the evidence as to. the burglary which was the subject of the indictment, and, as to the exhibition •of the tools at all, it appears that none of them were introduced in evidence until after some had been offered by the defendant’s counsel. On this subject the defendant’s counsel said at the trial: “ I •desire to have placed, upon the record the fact that Mr. Weeks (the prosecuting counsel) has exhibited a great number of iron instrutnents here in court, and I ask that your honor instruct the jury to disregard entirely that exhibition here, as they are not put in evidence and should never have been éxhibited here to prejudice the jury •against the defendant. The Court.— I .understood they were put in evidence. Mr. McLaughlin.— No, sir-; only, one little .tool. Mr. Weeks.— The' counsel for the defendant offered some of them in evidence. Mr. McLaughlin.— I offered a hammer and a nut turner for a bicycle. The Court.— I understood they were all in evidence.. If they are not in evidence, you must take them away' from the sight of the jury. Mr. McLaughlin.— They' should not be ' exhibited here. The Court.— That is fair. Mr. Weeks.—- What is 'your Honor’s ' ruling ? The Court.— Unless they are in evidence they must be taken away. Mr. Weeks.— I
The tools came into the case as evidence through the act of the defendant’s counsel in putting some of them before the jury to show that- they were tools intended to be used for innocent purposes. The question of the admissibility on the trial of an indictment of implements such as would be used in the perpetration of a crime was before the Court of Appeals in the celebrated case of Ruloff v. The People (45 N. Y. 213) where objection was made to the production in evidence of certain implements and papers found in the room and desk of the prisoner. Both the room and desk were used somewhat in common by him and one of his associates, but he was the chief occupant; the articles were taken some time after his arrest,, and one of them was admitted by the prisoner to have been in his possession, as a new invention and a curious thing, and the court held that all of those instruments might be put before the jury. Here only those that were deemed suitable to the perpetration of a burglary were of any consequence, but as the prisoner’s counsel took the responsibility of putting some of them before the jury it was not incompetent for the prosecution to show precisely what-was discovered in the prisoner’s room, and, under the charge of the judge respecting the matter, we do not see that any reversible, error was committed with regard to that subject.
It is further claimed on the part of the prisoner that an error was committed by the court in allowing proof of an indictment upon which the prisoner had been previously convicted of the offense of petit larceny. It seems that in 1893 a person claimed to be the
Another claim of error is made on the part of the prisoner that the prosecution was allowed to show that Agnes Henshaw had, on the night of the 31st of December, 1895, left on deposit with the •cashier of Bloomingdale Brothers, by which firm she was employed ■as a saleswoman, the sum of $500j and that after making that deposit she left and never returned. She is the woman with whom Wilson lived. We do not find in the record any objection to this
The defendant has urged as an objection calling for a reversal of the judgment that the indictment charged more than one crime within the meaning of sections 278 and 279 of the Code of Criminal Procedure, but we do not find in the record that the objection now urged was taken at the trial, or that it is presented in such form that we can consider it, and the same may be. said of the motion in arrest of judgment.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
■Judgment affirmed.