
    Supreme Court—Appellate Division—Second Department.
    May, 1899.
    PEOPLE v. CRONK
    1. Evidence—Burglary.
    On the trial of an indictment for burglary in the third degree and grand larceny in the second degree, evidence to the effect that on the night on which the crime was committed the accused was seen near the-burglarized premises in the company of a person whom he met half an hour after the latter had come from a lot, in a cellar, upon which stolen goods were afterwards found, and that the accused had a patch of mud upon his trousers similar to that in the celler, is insufficient to warrant a conviction. This is the case especially where a witness testifies that the mud upon the accused’s trousers was similar to that found in the streets.
    2. Criminal law—Advice to acquit.
    Under § 410 of the Criminal Code, the court may advise the jury to acquit the defendant, and the jury are required to follow his advice.
    Appeal from a judgment of the county court of Rockland county, convicting the defendant of the crime of burglary in the third degree and grand larceny in the second degree.
    
      William. M. K. Olcott (Terence J. McManus with him on the brief), for the appellant.
    George A. Wyre, for the respondent
   GOODRICH, P. J.

During the night of April 11, 1898, a store in Nyack, belonging to one Scanlon was broken into and two bicycles and other property to the value of seventy dollars were removed. They were subsequently found in a cellar of a house on the adjacent lot, known as the Bogardus lot. The only testimony which connects the defendant with the crime is that at about one o’clock on the night above mentioned he was seen in the company of his codefendant Connors a few hundred feet distant from the premises broken into, and that about half an hour later he met Connors near the premises after the latter had jumped over the fence into the street from the Bogardus lot, and that there was a patch of mud on Cronk’s trousers similar to the mud in the cellar. -There was ample evidence to show that a burglary had been committed on the Scanlon premises, but the evidence is not sufficient to connect the defendant with the crime.

In People v. Fielding, 158 N. Y. 542, the court said: “ Whether the defendant be innocent' or guilty, in our opinion he has not been adjudged guilty in accordance with law. * * * If we disregard a sound and well-established rule in his case because we think he is guilty, we tear down one of the safeguards provided by society for the protection of its citizens, and the precedent may, at some time, aid in depriving an innocent man of his liberty or his life.”

That the defendant Oronlc was near the scene of the burglary and that he was afterward in company with Connors, who was seen .coming from the premises, are simply suspicious circumstances, but they do not afford evidence sufficient to establish the fact that the defendant was guilty of the crime charged in the indictment. As to the mud on the defendant’s trousers, the evidence of the officer who testified to the fact shows that similar mud was common to all the streets of FTyack.

In our opinion, the evidence, which was purely circumstantial, was insufficient to warrant a conviction. Under section 410 of the Code of Criminal Procedure the court might have advised the jury to acquit the defendant, and the jury are required to follow his advice. We think that course should have been pursued.

The judgment against the defendant Cronk must be reversed.

All concurred except Cullen and Bartlett, JJ., who concurred in the result.

Judgment reversed and new trial ordered.  