
    The People v. Dom Pedro.
    (Supreme Court, Kings Special Term,
    January, 1897.)
    1. Criminal law.— Accessory to a felony.
    A conviction of the crime of being accessory to a felony by aiding • the principal to avoid or escapé arrest, cannot be had without proof of the guilt of the principal. '
    
      2. Same.
    One cannot he found guilty as an accessory to a felony except upon proof that he gave personal assistance to'the felon with intent to .enable him to physically get away, such as to conceal him, to rescue ■ , him, to furnish him with a horse and .the like.. That he endeavored to get the complainant to fail to identify, or to forget, or not- to prosecute, suborned witnesses, or the like, does, not make out the crime. .■
    
      3. Same — Evidence of good character.
    A charge which, in effect, instructs the jury that evidence of good character of the defendant is not worth considering, is erroneous.
    Motion for certificate of reasonable doubt. One Pino was charged with grand larceny by one Giordino, and a warrant for his arrest was obtained by the latter. Before it was executed, Finn went to the house of the said complainant with the defendant herein and two others. • The defendant there professed to be a police detective, and to have brought Fino for identification by the-said complainant as the person accused, but when the complainant; identified Fino the defendant seems to have tried to get him to say that he was mistaken and could not identify. The other facts are in the opinion.
    J. W. Ridgway, for motion.
    F. L. Backus, district attorney, opposed.
   Gatnob, J.

I do not see how.I may deny the defendant a certificate of reasonable doubt.- He was convicted of the crime of being an accessory to an alleged felony by one Fino, in that he-aided Fino to avoid or escape arrest therefor.

That he might be convicted the prosecution had to prove three things, viz.:

1. That the said Fino was guilty of the alleged principal felony,, viz., the larceny of $250 from Giordino, the complaining witness in this case.

2. That the defendant had “ knowledge or reasonable ground to-believe ” that Fino was guilty of such felony, and liable to arrest.

3. That having such knowledge or reasonable ground of belief,, he harbored, concealed, or aided Fino, with intent that he might. “ avoid or escape from arrest ” Penal Code, § 30. .

The jury was the sole judge of the facts, and each of these-things had to be proved to them beyond a reasonable doubt to máke out the crime. Nevertheless, the learned county judge stated-to them in opening his charge as follows: “ This is not a very

difficult case for you to decide, although it has occupied the attention of the court all day; ” and then added: “ There is only one element of doubt in the case, and that is this, whether or not this-defendant on the day named in the indictment was at SheepsheadBay with the intention merely to relieve his friend, honestly, who-was in trouble, or whether he was there to shield a person who had. committed a crime against tire laws and to aid him to escape from justice.” The jury were thus told that there was no doubt in the case except upon this one head, involving the actions and the intent of the defendant.- And yet, as has been pointed out,: he could not he guilty unless Eino was in fact guilty of the said principal crime, viz., the larceny; and about that the jury might have had a reasonable doubt, had not the charge excluded it from doubt. ■ It was for them, not the learned county judge, to say. There could, he no accessory without, a principal. It is true the jury were - later formally charged that they must'be satisfied of the defendant’s guilt beyond a reasonable doubt, hut nowhere was -the previous restriction as to what was subject to doubt enlarged or removed. In fact, the evidence leaves the guilt-of Fino, the alleged principal, open to question, to say the least; The only testimony upon that head is thatiof the complaining witness, Giordino, . All he says- is that Fino carne to his house at Sheepshead Bay, in the city of Brooklyn,, and asked kirn if he knew a place: to open .a fruit stand; that, he told Fino he knew such a place by the-seá shoré;- that they went together to the landlord, who sent them to the police station to get a permit of the captain; that the captain sent themto^he city -hall; that they went there together the next day,, but could not find the man who attended to such matters; that they returned to Sheepshead Bay .and went again to the city hall the next day with the same result;, that then they met a friend of Fino’s at a-street corner;- that all three went to a drinking saloon (for so the police .detective testifies Giordino reported to the police); that Fino handed to him (Giordino) $250, saying, “We. don’t buy fruit, for nothing;- do you think I want to deceive you? ” -that Giordino also had $250 with him,, which he sayS he had to‘pay a bill, and again that he'had it to get the permit and buy fruit.; that Fino- said to him, “ Go and pay your money and be here to-morrow; ” that Fino then said to him to put the money all together in -a handkerchief, as he might be robbed, and they did so> and gave it to him; and that, five minutes afterwards he opened the handkerchief and found only newspapers. ' Where the handkerchief was • meanwhile, whether On the bar, or the table,' or floor, or how many were present, or who left first, or where he opened the handkerchief, the witness does not and was-not asked .to disclose. He says they together put the money into the handkerchief, and (hat it' was1 given to him, This much is proved; he saw it -done* and helped do it; hut it secins to have-been taken for- granted upon the. trial that this was not the case at all, but that by slight of hand another handkerchief was substituted in the operation, or else paper instead of the money was put into the handkerchief, and the money kept by Fino. Was this the case, or did some one else take the money and substitute the paper?

Of this portion of the charge, it is also to be noted that the words to shield a person who had committed a crime against the laws, and to aid him to escape from justice,” is not a correct definition of the crime charged. It conveys to the jury the idea that if the defendant had used any means to shield Fino, and enable him to escape justice, that he was guilty of being an accessory. But this is far from being the law. One cannot be found guilty as an accessory to a felony except upon proof that he gave personal assistance to the felon with intent to enable him' to physically get away, such as to conceal him, to rescue him, to furnish him with a horse, and the like. Wharton, § 241; People v. Dunn, 53 Hun, 385. That he endeavored to get the complainant to fail to identify, or to forget, or not to prosecute, suborned witnesses, or the like, does not make out the crime: The jury were not told this, and the whole charge seems to be upon a contrary theory.

The tenor and substance of the part which has been quoted is continued through the .charge; and nowhere is the jury instructed that in order to convict the defendant they must find upon the evidence beyond a reasonable doubt that Fino was guilty of the . alleged larceny. They are told to the contrary, in so many words, viz.: “ If you believe the complaining witness and his wife, you must find the defendant guilty as charged. The complaining witness is corroborated by his wife in every detail.” That Fino, the alleged principal, was guilty is taken for granted. Of his. guilt the wife knows nothing, not having been present at his alleged larceny. The learned judge refers to the occurrences at the house of the complaining witness, testified to by him and his wife, upon which the charge of aiding Fino to escape is based, and says husband and wife corroborate each other in every detail, (which seems not to be so upon the evidence), and that if the jury believes them they must convict. Apart from thus charging the jury that the question of the defendant’s guilt depended wholly upon what occurred upon that occasion, it was for the jury to say whether the testimony of the husband and wife of what then there took place amounted to proof that the defendant aided Fino to escape. The court could not rule that the jury must ” convict' upon it if they believed it;

The defendant called witnesses to prove his good character, touching which the learned county judge charged as follows: “ He also produces some evidence as to his good character. But before the week passes you will find that all these cases are to be decided upon the facts by twelve common-sense business men,” The jury are bound to consider evidence-as to good character, and so high is good character valued by the law, that such evidence may of itself "create the reasonable doubt which will require an acquittal; and yet the jury are told in plain effect that a week’s experience in that court will teach them that such evidence is not worth considering.

To return to the occurrences at the residence of the complaining witness, upon which the charge of aiding to escape is based, the evidence is by no means conclusive,. The defendant went there in the daytime with Pino and two o'thers, and apparently endeavored to get the complaining witness (Giordino) to refuse or fail to identify Fino as the one who had. stolen his money. His going there openly with Fino tends to disprove that- he was secreting him or aiding him to get away. It is claimed that Giordino and his wife separately made a movement to leave the house to call in a policeman to arrest Fino, and that the defendant prevented them, and thus aided Fino to escape- arrest. But it appears that after the conference was over Fino and his party of three went away publicly, and that neither Giordino nor his wife, followed them, or watched them, or went to the neighboring police station, or called a policeman, Or gave an alarm, or did anything looking to an arrest. . After reading the testimony of Giordino and his wife, I fail to' find that they say that they said to or in the hearing of the party that they wanted to go out for the police. ¡Neither says so. It was suggested by questions, but evaded rather than testified to. They may have wanted to go out for that purpose, as .they say, but they do not seem to have disclosed such purpose. Indeed the wife says expressly that she did not tell them that she wanted to go out at all, but. that she wanted to go up stairs to dress herself, and was prevented. That any escape was intended or attempted seems also to be made doubtful by the fact that Fino did not go away, but was arrested a few days afterwards under the warrant which had been issued before he went with defendant to the house of the complaining witness.

There were no. exceptions taken upon the trial, but it seems to me to have been at such variance with what our law requires a criminal trial to be, that the defendant is in justice entitled to. have it reviewed.

The certificate is granted.  