
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    April 28, 1911.
    THE PEOPLE v. ANGELO MANFREDI.
    (144 App. Div. 359.)
    (1.) Appeal—Variance between proof and indictment—Must be RAISED BELOW.
    Where an issue as to a variance between an indictment and the proof in a criminal prosecution was not raised in the court below by any proper exception, it cannot be taken for the first time upon appeal.
    (2.) Same—When acquittal of two defendants exonerates third.
    Where the jury in a prosecution for grand larceny, second degree, acquitted two of three defendants under circumstances showing that they found the testimony of the witnesses produced by the prosecution to be false, a judgment convicting the third defendant cannot be sustained where there is no other evidence of his guilt.
    Appeal by the defendant, Angelo Manfredi, from a judgment of the County Court of Kings county, entered in the office of the .clerk of said county on the 21st day of January, 1907, convicting the defendant of the crime of grand larceny in the second degree.
    
      Thomas C. Whitlock, for the appellant.
    
      Peter P. Smith, Assistant District Attorney (John F. Clarke, District Attorney, with him on the brief), for the respondent.
    
      
       See notes, Vols. 8-470; 19-74.
    
   Burr, J.:

The indictment charges Angelo Manfredi, Charles Skabelund and Adam Engel with the crime of grand larceny in the second degree, in that on the 27th of August, 1906, they stole property of the Brooklyn Rapid Transit Company, a corporation. Thefc property alleged to have been stolen was copper bonds or wire. There i's some evidence in the case that on the day named Skabelund and Engel had in their possession copper bonds ot wire belonging to the Brooklyn Heights Railroad Company,, which was contained in a box ear of the said' company,.known as Ho. 9,903. Upon the argument of this appeal a point was made with regard to variance between the indictment and the proof as to the ownership of said property. The question was not raised in the court below, nor is there any proper exception presenting it here. It is unnecessary for us to determine, therefore, the question of the alleged variance.

McGarry, a member of the police force of the city, testified that he saw Skabelund and Engel deliver this wire to the defendant Manfredi on St. John’s place near Utica avenue, There was also evidence that they were employees of the Brooklyn Heights Railroad Company, and had no authority to deliver its property to the defendant Manfredi, and there was also evidence as to the value thereof. The People then rested. -

After the defendant’s evidence had been introduced, Henry Carney, another member of the polio foree¿ was called on the part of the People, .and testified that he saw Skabelund and Engel on oar Ho. 9,903, on St. John’s place near Utica avenue, on the day named, and that he saw them give to the defendant Manfredi a sack apparently containing some articles. Skabelund, called as a witness for the defense, admitted that he was employed on the car named, but denied that he was on St. John’s place on the day specified, or that at any time he gave Manfredi any copper wire. On the contrary, he testified that he delivered at Bedford all of the wire that he received during that day. Engel swore that he was not on St. John’s place on the day in question, that he never gave Manfredi any copper wire, and that he never saw him until he saw him after the arrest of the defendant and when he was arraigned before the magistrate in the Police Court. The jury found that the story of Skabelund and Engel was true, and that of McGarry and Carney was false, and Skabelund and Engel were acquitted. Notwithstanding this, the jury found a verdict against Manfredi, and from the judgment of conviction this- appeal is taken.

If the evidence of McGarry and Carney was false, and the jury have found that it was, there is no evidence to sustain this conviction. Although Manfredi may have received copper wire on St. John’s place from someone, there is no proof that it was not the property of the person who gave it to him.

The judgment of the County Court of Kings county must be reversed, and a new trial ordered.

Jenks, P. J., Hirschberg and Rich, JJ., concurred; Woodward, J., concurred in result.

Judgment of conviction of the County Court of Kings county; reversed, and a. new trial ordered.  