
    The People of the State of New York, Respondent, v. Louis Friedman, Appellant.
    Second Department,
    March 8, 1912.
    Crime — burglary — grand larceny — evidence —• possession of property as evidence of guilt — refusal of defendant to testify — declarations of persons made at time of their joint arrest.
    One of three persons, indicted for burglary and grand larceny in taking two horses and some harness from a stable, was tried and found guilty. There was no direct proof connecting the defendant or the others with the crimes charged. It depended almost entirely upon the possession of the property and the circumstances thereof. Evidence examined, and held, insufficient to connect the defendant with the crimes charged.
    The conscious, exclusive and recent possession of stolen property warrants an inference that the possessor is guilty of the crime by which such property was taken from its owner.
    Such possession, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction.
    The neglect or refusal of a defendant to testify does not create any presumption against him.
    Declarations of one of three persons made at the time of their joint arrest are not admissible upon their trial as part of the res gestee in so far as they refer to past occurrences, nor are they admissible upon the theory of a conspiracy, unless such conspiracy be proven.
    But such declarations, made in the presence of the accused, are admissible for the purpose of ascertaining his'reply to them.
    
      Appeal by the defendant, Louis Friedman, from a judgment of the County Court of Queens county, rendered against the defendant on the 6th day of July, 1910, convicting him of the crimes of burglary in the third degree and grand larceny in the first degree, and also from an order entered in said clerk’s office on the 25th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eugene N. L. Young, for the appellant.
    
      Matthew J. Smith, District Attorney, for the respondent.
   Jenks, P. J.:

The defendant Friedman, Laskowitz and Markel were indicted for burglary and grand larceny. The defendant was tried separately and there was a general verdict of guilty. Two horses and some harness, the property of Stevenson, were taken from his stable in Long Island City, between midnight of February 3, 1910, and 5 A. M. of the next day. The said three men were arrested in company on February 10, 1910, at or near a railroad station in Paterson, 1ST. J., the horses were found in a freight car nearby and the harness was found upon some premises in that city. After the arrest Laskowitz led the police officers to the said freight car. As there was no direct proof that connected Friedman or the others with the crimes charged, the evidence of the corpus delicti almost, if not altogether, depended upon the possession of the property and the circumstances thereof. The defendant was not a witness, but sought to establish an alibi and offered evidence which tended to show his good reputation, which evidence was not offset or overcome.

I think that there are errors which make against the affirmance of the judgment. A police detective testified that on February 9, 1910, he went to Centerville, N. Y., where the defendant and Laskowitz had a farm, found a gray mare in a stable on the farm, took the mare to a stable in Centerville, notified the chief of police of • Paterson, and that as a result of the telegram, “there was a man by the name of M. Zeloff came to Centerville and brought the horse back to Jersey with him.” It did not appear that there was the slightest relation ' between this incident and the crimes charged in the indictment. I think that the admission of such testimony was against the rule discussed and stated in People v. Molineux (168 N. Y. 293 et seq.), that evidence of a distinct crime unconnected with that charged in the indictment is not admissible, and not within the exception thereto, that permits such evidence when “ the transactions in respect to which evidence was given were all intimately connected in point of time, place and circumstance with that for which the accused was indicted, so that they formed a continuous series of transactions, each throwing light upon the other, upon the question of knowledge, intent and motive.” (Coleman v. People, 58 N. Y. 555; People v. Grossman, 168 id. 47.)

The People offered the testimony of the agent of an express company in Paterson, N. J., that the defendant at 6 p. m. of February 9, 1910, at the Erie railroad station in that city, shipped a hag of harness to A. Cohen, Glen Cove, L. I. But Stevenson and one of the policemen had testified that on February 10th Stevenson found his harness in the premises of Fine in Paterson, N. J. There was no proof whatever that connected the harness thus shipped and the harness thereafter found, and it would seem that there could be no possible relation between Stevenson’s harness found in Paterson on February 10th and harness shipped to Cohen, Glen Cove, on February 9th by express, for which a receipt and a way bill were given. But the assistant district attorney in his address to the jury said in part: “We show you that on the 9 th day of February, at six o’clock in the evening, this defendant was in the express office at Paterson, New Jersey, and expressed a package of saddlery and harness to Glen Cove. Those things hear upon the fact as to whether this defendant did or did not take the horses, the fact that he had the harness in his possession, that he expressed the harness out on the island. They attempt to deny it. Again I am prevented—” Defendant’s counsel:' “Now—” The Court: “No.” It rests with the People to show conclusively these errors were innoxious. (Coleman v. People, supra. See, too, People v. Koerner, 154 N. Y. 355; Greene v. White, 37 id. 405, 407; People v. Corey, 148 id. 476, 494.) I think that we should reverse the judgment under our broad powers of review. (Code Crim. Proc. § 527; People v. Sherlock, 166 N. Y. 180, 183; People v. Kathan, 136 App. Div. 303, 311.)

The conscious, exclusive and .recent possession of stolen property warrants an inference that the possessor was guilty of the crime by which that property was taken from its owner, for the reasons that experience so indicates and that generally the possessor knows exclusively the events which brought possession in him. (Griffen v. Manice, 166 N. Y. 194.) Such possession raises a presumption of fact. (Stover v. People, 56 N. Y. 315.) It should be noted that the possession must be exclusive (Knickerbocker v. People, 43 N. Y. 177; People v. Wilson, 151 id. 403) and “recent,” although “recent” is a relative term dependent on the surrounding circumstances, including the character of the property, of each case, and not susceptible of precise definition. (State v. Hodge, 50 N. H. 510-516; Whart. Cr. Ev. § 759; “Recent,” in Words and Phrases Judicially Defined; 3 Rice Ev. 733.) And such possession, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction of the possessor of the crime by which it is proved the property was taken. (Knickerbocker v. People, supra; Stover v. People, supra; People v. Wilson, supra.) In Knickerbocker v. People (supra) the court cites with approval the language of Littledale, J., in Rex v. Smith (1 Ry. & Mood. 295), proof “of possession of stolen property soon after a robbery refers to the original taking with all its circumstances.” If the explanation as to possession create a reasonable doubt in favor of the possessor it would practically rebut the presumption of guilt arising from the mere possession. (Dame v. Coffman, 58 Ind. 340; 3 Rice Ev. 734.)

But the mere proof of such possession, unexplained to the satisfaction of the jury, would not justify .the jury in finding that the possessor was guilty of the crime of burglary, for example, if that were the crime whereby the property was originally taken, if the evidence disclosed to the satisfaction of the jury that the possessor was only a receiver of stolen goods. Gray, J., writing for the court in People v. Wilson (supra), says: “If the evidence satisfies the jury that the larceny was committed by some other person than the defendant and that some part of the stolen property was found in the defendant’s conscious and exclusive possession, they might convict him of the crime of receiving stolen goods and acquit him of the crime of larceny.” Russell on Crimes (Vol. 2, p. 1482) says: “ The possession of property that has been recently stolen is evidence either that the person in possession stole the property, or that he received it knowing it to be stolen according to the other circumstances of the case. So where the prisoner was found in the possession of some sheep that had been recently stolen, of which he could give no satisfactory account, and it might reasonably be inferred from the circumstances that he did not steal them himself and he was convicted of receiving it was held upen a case reserved that there was evidence for the jury that he received them knowing them to have been stolen.” And the same author cites the language of Blackburn, J., in R. v. Langmead (L. & C. 427): “When it has been shown that property has been stolen and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest and that he was either the thief or the receiver according to the circumstances. If he had been seen near the place where the property was kept before it was stolen they may fairly infer that he was the thief. If other circumstances show that it is more probable that he was not the thief, the presumption would be that he was the receiver. The jury should not convict the prisoner of receiving unless they are satisfied that he is not the actual thief.” In the case at bar, if the jury were convinced that the proof showed that the defendant was only a receiver of stolen goods they should not upon mere proof of his possession, conscious, exclusive, recent and •unexplained as to its innocence, have found a verdict of guilty. For the indictment charges burglary and larceny only, although a count for the receiving of stolen goods could have been included therein. (People v. Wilson, supra.) Of course the jury could have rejected the testimony as to the way whereby the defendant came into possession and have rested their general verdict of guilty upon the possession provided they were satisfied by the proof that the property had been taken from the owner by a burglary or a larceny. So far as the presumption that rests upon possession is supported by the defendant’s “proved or presumed ability ” of explanation, “ it must, if he refuses to testify, rest upon his proved or presumed ability to explain his possession by other evidence than his own testimony.” (State v. Hodge, supra, 517.) To urge that his omission to take the witness stand must make against him so far as the lack of explanation is concerned is to offend the statute. (Code Crim. Proc. § 393.)

The .declarations of Laskowitz at the time of the joint arrest were not admissible as of the res gestae in so far as they referred to past occurrences, nor were they admissible upon the theory of a conspiracy unless evidence had been or was thereafter produced tending to establish such concerted action for the commission of the crimes charged in the indictment. Such declarations as bore upon the question of a reply by the defendant were admissible, not, however, as evidence, but only for that purpose. (People v. Kennedy, 164 N. Y. 449.)

' The judgment of conviction is reversed and a new trial is ordered.

Burr, Thomas, Carr and Woodward, JJ., concurred.

Judgment of conviction of the County Court of Queens county and order reversed and new trial ordered.  