| New York Court of General Session of the Peace | Sep 27, 1910
delivering the opinion of'the Court:
This is an application to give the jury binding instructions to return a verdict of not guilty because of the insufficiency of the evidence to warrant a conviction of the accused.
We have had the evidence introduced by the State read to us, and we have given the application before us careful consideration. Of course, it is incumbent upon the State, in order to warrant a conviction of larceny, to establish every material element of the crime. One of the elements of the crime of larceny is the asportation of the alleged stolen property by the accused. This may be shown by direct or circumstantial evidence. In this case, the State has shown the asportation by someone of the property described in the indictment, but the question raised by the application before the Court is, has the State shown an asportation by the accused? The State has not shown or attempted to show by positive testimony that the accused took the property described in the indictment, but relies wholly up m circumstantial evidence,—such as is now before the jury. Circumstantial evidence, when it establishes, or strongly tends to establish, the guilt of the accused may like positive testimony be relied upon for a conviction. But when circumstantial evidence alone is relied upon for a conviction of a crime, the evidence must be such as to create in the mind more than a mere suspicion. It must be of such a character and strong enough to exclude any reasonable inference or conclusion other than that the accused is guilty of the crime charged. Mere probability of guilt is not enough. The evidence must be of such a character as (1) to enable the jury to find the crime proved beyond a reasonable doubt; (2) that the circumstances proven be in all respects consistent with the theory of the guilt of the accused; and (3) that such circumstances be inconsistent with any other reasonable theory than the guilt of the accused. We do not think the evidence adduced in this case, in view of all the surroundings attending the alleged larceny,
Gentlemen of the jury:—You are instructed to return a verdict of not guilty.
Verdict, not guilty.