117 N.Y.S. 441 | N.Y. App. Div. | 1909
The defendant was charged by indictment with grand larceny in the second degree, the facts constituting the crime being alleged to
■ We are of the opinion that the evidence supports the verdict of the jury; that it shows that the. defendant was engaged in taking oysters from the bed of Johnson; that there were at least fifty bushels of such oysters in his possession when discovered and that these oysters were worth one dollar and twenty-five cents per bushel, and that they were taken under such circumstances as to justify the jury, in finding that they were taken feloniously. While there was a decided conflict of evidence, it was for the jury to say whether they were convinced by the evidence beyond a reasonable doubt, and the- evidence was sufficient for that- result.
It is urged that the court erred in- permitting the district attorney. on cross-examination of the defendant to ask: “ Did your wife have-you arrested ? ” The witness had been . asked, without objection, if he had ever been convicted of a crime, etc. On redirect examination he. had stated in answer to his counsel that he liad never been convicted of anything else than being intoxicated. Upon reeross-éxami nation he said he was not convicted for .striking his wife. The question was then asked:. “For-an assault committed upon your wife ? ” This was objected to, no ground being given, and the. defendant was permitted to answer, -the defendant excepting. He .answered: “I got ten days once. My wife did not have me arrested. A neighbor did.” We are of the opinion that the defendant, by bringing out the statement that .the defendant had never
There was no error in the court refusing to charge “ that any oyster ground planted without written authority from the Town Board is not a legally planted oyster bed.” This rule, at most, only applies to those town boards which, under their original charters, had the right of fishery in adjacent waters; oysters planted in the waters outside of such townships do not require the consent of town boards. But the question presented here was purely abstract. It was in evidence, and there was no dispute, that Johnson had a license from the town board. There was some evidence which indicated that Johnson might be occupying more territory than his license called for, but this was not affected by the request to charge, and there was no issue of whether Johnson had a license or not — that was conclusively established and the court had so charged.
We have examined the alleged errors on the part óf the court without finding them. The request to charge that “theindictment should be based on evidence which removes all reasonable doubt,” had nothing to do with the trial of the facts in this case; what should move a grand jury to act was not before the court. Likewise the request to charge that “ evidence of defendant’s previous good character in and of itself raises a question of reasonable doubt, no matter how strong the evidence against him may be,” had nothing to do with this case, for the reason that the defendant offered no such evidence. (People v. Brasch, 193 N. T. 46, 66, and authority
The judgment, appealed from should b.é -affirmed,
Hxbsohbeeg, P. J., Bu.ee,.Rich and Milleb, JJ., concurred. Judgment of the County Court of ÍSTassau county affirmed.