
    Supreme Court, Appellate Division, First Department
    May, 1904.
    THE PEOPLE v. WILLIAM L. STRAUSS AND WILLIAM L. HAAS.
    (94 App. Div. 453.)
    1. Counterfeit trade marks—Testimony of Accomplice—Corroboration.—Code of Grim. Pro. Sec. 399.
    The corroboration required by Code Crim. Pro. Sec. 399 need not extend to every material fact essential to constitute the crime; it is sufficient if other evidence be given fairly tending to connect the defendant with the crime so that the conviction will not rest entirely upon the evidence of the accomplice.
    2. Same. —Penal Code Sec. 364 Sub. 4t-
    When, upon the trial of two partners charged with having and selling counterfeit trade marks the evidence of the defendants’ accomplice is sufficiently corroborated to sustain a judgment of conviction, considered.
    3. Same.
    The crime being a misdemeanor, the defendants may properly be tried together and where it appears that they acted in concert anil that each was an active participant in the commission of the crime, declarations made by one in the absence of the other are admissible against both.
    Affirmed 179 N. Y. Memo.
    Appeal by- the defendants, William L. Strauss and another, from a judgment of the Court of Special Sessions of the first division of the city of New York, entered on the 29th day of January, 1904, convicting the defendants of a violation of subdivision 4 of section 364 of the Penal Code.
    Julius M. Mayer, for the appellants.
    Howard S. Gans, for the respondent.
   Hatch, J.:

Defendants herein were both convicted of the offense of having in their possession and selling counterfeit trade marks in violation of subdivision 4 of .section 364 of the Penal Code and other provisions of that section. Upon conviction each defendant was "sentenced to ten days in the city prison and to pay a fine of $500. Section 364 of the Penal Code provides: “A person who knowingly * * *

4. Has in his possession a counterfeit trademark, knowing it to be counterfeit, * * * is guilty of a misdemeanor.” Section 366 of the Penal Code defines a trade mark to be ‘ ‘a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person, or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label, or other mark, lawfully adopted by him, and usually affixed to an article of merchandise to denote that the same was imported, manufactured, produced, sold, compounded, bottled, packed, or otherwise prepared by him; and also a signature or mark, used or commonly placed by a painter, sculptor, or other artist, upon a painting, drawing, engraving, statue, or other work of art, to indicate that the same was designed or executed by him.” Section 368 provides that “an ‘imitation of a trade-mark’ is that which so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine, whether by the use of words or letters, similar in appearance or in sound, or by any sign, device or other means whatsoever.” It appeared that the defendants were in the year 1901 copartners, carrying on business under the firm name of William L. Strauss & Co., at No. 27 Warren street, in the borough of Manhattan, city of New York, claiming to be dealers in druggists’ supplies. It was testified to by Sigmund Schulhafer that some time in the year 1901 deiendants in company with each other called upon him at No. 2331 Third avenue, in the city of New York, where he was then engaged in carrying on the business of wholesale liquor dealer. The defendants informed him that they could procure labels and caps so close in imitation to the labels and caps used upon the bottles of Hunter whisky that the difference could scarcely be detected. Schulhafer after such conversation ordered of the defendants 10,000 caps, and in response to a telephone message received several days later he sent his truckman to the defendants’ place of business for the caps in question. The truckman returned with the case, it was opened in his presence and Schulhafer’s, and was found to contain the caps which he had ordered. The purchase price of the caps was $500. Upon attempting to use them, however, they proved to be too small, many of them split in the attempt to place them upon bottles, and subsequently a compromise was made between the defendant Haas and Schulhafer whereby he only paid $150 for this case of caps. In the spring of 1902 Haas came to Schulhafer’s place of business and told him that his partner Strauss was going to Europe, and that if he wanted any more caps they could get them, and that these caps would be perfect. Haas also told him that he could get Hunter labels, and thereupon Schulhafer gave him an order for 5,000 labels and for more caps. Some months later he was called on the telephone by the defendant Strauss, whose voice he recognized, and was informed by him that the goods had arrived. Thereupon Schulhafer sent his clerk, Miller, for the labels. He returned with a package, which was opened in the presence of the clerk and Schulhafer, and it was found to contain 10,000 “Hunter” labels. In the spring of 1903 Schulhafer gave another order to the defendants for Hunter labels, and in the early part of August the defendant Haas informed him that they were ready and that he would send them up to him. Thereafter Monroe Schulhafer, nephew of the liquor dealer, who was then in the employ of the defendants, took the package to Schulhafer’s place of business, where it was opened and found to contain Hunter labels. It appeared without dispute that the labels thus furnished by the defendants to Schulhafer were imitations of the genuine Hunter labels and caps, which were used by William Lanahan & Sons of Baltimore for the purpose of advertising and designating the genuine Hunter rye whisky, and that such caps and labels constituted a trade mark of the sellers of Hunter whisky, and had been used by such firm continuously for three years and upwards. It is evident, therefore, that if the testimony of Schulhafer is to be believed, an offense was established to have been committed within the provisions of the sections of the Penal Code to which we have called attention. (People v. Krivitzky, 60 App. Div. 307; affd. on appeal, 168 N. Y, 182.)

It is said, however, that this conviction cannot be sustained, for the reason that Schulhafer was an accomplice of the defendants in this violation of law, and that the People failed to corroborate his testimony with such certainty as the law requires. We assume for the purposes of this discussion, that Schulhafer was an accomplice. The rule with respect to the corroboration of accomplices in cases of this character is found in section 399 of the Code of Criminal Procedure. It reads: “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” Under this statute it is claimed by the defendants that the corroboration must extend to every material fact essential to constitute the crime, and that in this the People have failed. This is undoubtedly the true rule where, by the provisions of the statute, corroboration of every material fact is required. Such a rule applies in cases of rape; (People v. Page, 162 N. Y. 272.) Under the statute which we have last quoted, and which is applicable to this case, the rule requiring corroboration does not go to this extent. It was said by Judge Martin, writing for the court in People v. O’Farrell (175 N. Y. 323), after considering the case to which we have called attention and others: “It is true those cases arose under a different statute, which provided that no conviction could be had upon the testimony of the person injured, unsupported by other evidence, while the statute under consideration provides that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. Although under those statutes the rule is different as to the amount of corroboration required, still in either case the corroboration must be of a character and quality which tends to prove the defendant’s guilt by connecting him with the crime. If there is evidence fairly tending to show such connection, so that the conviction will not rest entirely upon the evidence of the accomplice, then the question whether the evidence is a sufficient corroboration to induce the jury to find against the defendant is for it to determine.” Under this rule it is evident that the testimony is abundant to corroborate Schulhafer. Neither his truckman, his clerk nor his nephew were participants in the commission of this offense, and their testimony is sufficient in fairly tending to prove the defendants’ guilt by connecting them with the crime. Michael Miller, who was employed in 1901 by Schulhafer, testified that just before the holidays of that year he procured by direction of Schulhafer of the defendant Strauss, at their place of business, a case which he delivered to Schulhafer; that it was opened in his presence and contained Hunter and Old Crow caps; that after the holidays he again went to the house of Mr. Haas, obtained a second package, carried it to Schulhafer, where it was opened, but objection being interposed on behalf of Haas, which was sustained, he was not permitted to state what it contained. The witness stated that he obtained another case in the summer of 1902 from a lady at Haas’ house, from whom he received the other; but he was not permitted to state its contents. The first case he obtained from Strauss at his place of business. George Kmkel testified that he was employed by Schulhafer; that in 1902 the latter sent him to Strauss’ place of business; that he there saw the defendant Haas, told him that Schulhafer had sent him down there for labels. He said “all right,’’ and gave him a package which he carried to Schulhafer, where it was opened in the presence of both of them, and he identified its contents as the imitation labels which had been offered and received in evidence. Both Haas and Strauss were present at the time when this package was delivered to the witness 15 by the defendant Haas at their place of business. The labels were looked over and counted. M.onroe Schulhafer testified that in August, 1903, he was in the employ of the defendants Strauss and Haas; that about August fifth of that year Haas gave him some imitation labels to wrap up and deliver to Schulhafer, which he did, and that he delivered them to the latter and saw them unwrapped in his presence. It is clear, therefore, that this testimony tended to the corroboration of Schulhafer, and to prove the guilt of both defendants by connecting each of them with the criminal acts.

It is further claimed that error was committed in receiv- - i ' ing in evidence conversations had with one defendant in the absence of the other. The proof is entirely sufficient to show that the defendants in what they did were acting in concert, and this fact being established, declarations of one were admissible against the other. Both were shown to -be active participants in putting up and handling the counterfeit labels and caps for- purposes of «delivery to the witness Schulhafer, and the common purpose to commit the offense being established the declarations of each were admissible in evidence, whether present or absent. This is the rule which obtains where the person charged procures and instigates another to commit a crime. In such case, the acts of ' each are admissible against the other. (People v. Peckens, 153 N. Y. 576.) In the present case there is no element of procuring another to commit an offense; consequently neither the doctrine of agency nor of partnership applies; here both were principals in the particular transaction.

The act was a misdemeanor, and being a misdemeanor they were properly tried together, and the declarations of ■each were admissible in evidence against the other. No other questions appear which require consideration at cur hands.

It follows that the judgment of conviction was right, and .it should, therefore, be affirmed.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed.  