
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    June 28. 1907.
    THE PEOPLE v. GEORGE BURNHAM.
    (120 App. Div. 388.)
    Penal Code § 528 Sub. 2—Stealing Corporate Money—Evidence.
    In a criminal action under subdivision 2 of § 528 of the Penal Code against an officer of a corporation for appropriating moneys, the books of the corporation will not be admitted as evidence against the defendant without proof connecting him with the books or entries therein.
    Motion for a reargument of an appeal by the defendant, George Burnham, the younger, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 17th day of December, 1906, convicting him of the crime of grand' larceny in the first degree, and for a resettlement of an order of the Appellate Division. (See 119 App. Div. 302.)
    
      W. T. Jerome, for the motion.
    
      8. T. Tyng, opposed.
   Peb Cubiam :

A reconsideration of the questions involved on this appeal in the light of the criticism of the opinion by the learned district attorney fails to disclose that the court overlooked any material facts or any controlling authority, or that any grounds exist which would justify the court in ordering a reargument. The reference in the opinion to the admission of the entries in the books of the corporation related solely to such entries against the defendant who is not shown to have had anything to do with the books or any knowledge of their contents or any connection with the entries, and the statement that the books of a corporation are not evidence against an officer of a corporation in a criminal proceeding against him of course refers only to hooks or entries where it was not shown that the person against whom the entries were offered had any knowledge of the entries or any connection with the books.

What we decided was that mere proof that defendant was an officer of the corporation did not justify the court in admitting all the books of the corporation as evidence against him in a criminal proceeding without proof of further connection of the defendant with the hooks or entries.

The motion for reargument is, therefore, denied.

The reversal was distinctly upon the ground that upon the facts proved the judgment of conviction could not be sustained. The application for a resettlement of the order is, therefore, denied.

Present — Ingraham, McLaughlin, Clarke, Houghton and Lambert, JJ.

Motion for reargument denied. Motion for resettlement denied.  