
    SUPREME COURT—APP. DIVISION—SECOND DEP.,
    March 11. 1908.
    THE PEOPLE v. EDWARD STONE.
    (125 App. Div. 250.)
    (1) . Trial—Opening Remarks of District Attorney.
    It is not reversible error for a district attorney in his opening to state that, after the commission of a larceny by defrauding the complaining witness of his money in a confidence game, the defendant and his co-conspirators were found waiting at a train and “ that it is fair inference that they are waiting for some other victim.”
    (2) . Same.
    Unless the facts of the case are overstepped by a prosecuting attorney in his opening address, or arguments are used which plainly abuse his privilege, the appellate court will not reverse a judgment of conviction because of the refusal of the trial court to interfere.
    (3) . Same—Evidence—Acts of Conspirators in Absence of Defendant.
    Where a conspiracy to defraud is established by prima facie evidence, transactions between the complaining witness and some of the conspirators in the absence of the defendant, a co-conspirator, are admissible.
    Appeal by the defendant, Edward Stone., from a judgment of the County Court of Kings county, rendered on the 27th day of May, 1907, convicting the defendant of the crime of grand larceny in the first degree.
    
      George C. O'Brien [Martin W. Littleton with him on the brief], for the appellant.
    
      Peter P. Smith [John F. Clarke, District Attorney, with him on the brief], for the respondent.
   Hooker, J.:

The appellant Stone was indicted jointly with one Simmons and one Myers for grand larceny in the first degree. Simmons and Stone demanded separate trials. They were both convicted, and Simmons’ appeal has likewise been argued and is decided herewith (People v. Simmons, 125 App. Div. 234). The same points that were raised in behalf of the appellant in the case of People v. Simmons are urged in behalf of the appellant here. In the main, our disposition of the points made in the Simmons case controls here. There are, however, some points of difference between the two cases which, perhaps, will justify a separate treatment of this case.

The opening remarks of the district attorney were substantially the same in both cases, and differed only in two main particulars: First, in the case at bar the district attorney did not refer to the paper which Stone tore up upon his arrest, nor to letters found in his possession; and, second, the district attorney having come to the point in his opening where the money was stated to have been taken from Arnold, the prosecuting officer stated this in the ease at bar which he omitted in the Simmons case: “ He walked outside, Simmons gets away, the steerer gets away as though the ground opened and he vanished and the old man is left down there all alone. He then contemplated suicide, the old fellow does not know what to do, his fortune practically gone. But he then turns to the police and two men, Detective Sergeants Bushby and Hughes are put on the case; they go down to Coney Island; they look the ground over for some time. These fellows are in hiding out of the way. In about two weeks time they show up, supposing the old man had gone to the other side, he appears down there with the detective sergeants and this fellow and Simmons are waiting at the train there where the cars come in,- and it is fair inference they are waiting for some other victim to come along; I say it is an inference, but they’re waiting at the train there. Myers has not been found from that day to this.”

At the close of the district attorney’s opening the learned counsel for the defendant took numerous exceptions to statements made by that officer. These exceptions in the main addressed themselves to statements of conversations and transactions in the absence of the defendant Stone which, the district attorney expected to prove. The defendant also excepted to the statement “ that Simmons and Stone were waiting at the train, and the fair inference was they were waiting for some other victim.” The defendant did not except to the statement of the district attorney that the prosecuting witness Arnold contemplated suicide. The cases differ in this also, that here the court did not instruct the jury to disregard the statement in relation to Arnold committing suicide or in relation to the probability of Simmons and Stone waiting for some other victim, nor indeed was the court asked to do so by the defendant.

It is only necessary, therefore, to add to what was said in the Simmons case in relation to the charge to the jury, our observation in relation to the statement that Simmons and Stone were waiting probably for another victim. The district attorney did not assume to state this as a fact, hut merely as an inference, and then emphasized the way in which he viewed it by repeating, “ I say it is an inference, but they’re waiting at the train there.” It is true that there is a degree of liberty allowed to counsel in a criminal case, whether for the People or the accused, in respect to the line of argument they shall pursue, and the inferences to be drawn from the evidence, which the trial judge should respect, unless the facts of the case are overstepped or arguments used which plainly abuse the privilege, and. a reviewing court should not reverse a judgment because of the refusal of the trial court to interfere with an argument of counsel, unless it was plainly unwarranted and so improper as to be clearly injurious to the accused. It was said in the Simmons case that in cases of larceny by scheme, trick or device, even proof of the commission of similar crimes has been held competent on the question of motive and intent. It seems to us that the learned district attorney probably had that rule in mind when he invited the attention of the jury to the inference he was inclined to draw from the presence of the defendants at the railroad station at the time they were arrested. It is doubtless true that proof if subsequent crimes of a similar nature would not have been material, but the district attorney did not assert that they were detected in the commission of another crime; he merely referred to his belief as an inference from the fact he stated. We feel convinced that this statement was not prejudicial to the defendant nor did it deny him his constitutional right of a fair trial.

By numerous exceptions the defendant also raised the question whether it was material to admit in evidence testimony of transactions between the prosecuting witness Arnold and Myers, and between Arnold, Myers and Simmons in the absence of the defendant. We think that before the evidence was finally closed sufficient was established to show prima facie a case of confederation by Simmons, Stone and Myers for obtaining Arnold’s money by trick, device or fraud, and hence there was no error in the rulings to which exception was taken. Bor the jury were justified in finding that Jones’ connection with the transaction was that of a confederate with Myers and Simmons ; the evidence was sufficient to show that Stone was found in the hotel at Coney Island, when Myers and Arnold reached there in the first place; that he falsely represented himself as proprietor; that he was in and out of the private room there on both the first and second occasions of Arnold’s visit; that when appealed to by Simmons he declared Arnold’s letter of credit good as gold, and Myers’ draft he characterized in the same way; it was he who presented for signature the paper declaratory of the fact that Myers, Arnold and Simmons had agreed to a gambling transaction; and it was he who, later, acted as amanuensis for Myers when the latter expressed a desire to communicate by mail with his backers in San Francisco, directing them to forward the sum of $2,000 to Arnold in Germany; and lastly, he disappeared after Arnold’s money had been taken from him, as did Simmons and Myers. The order of proof as we held in the Simmons case, was within the sound discretion of the court, and the exceptions of the defendant on this branch of the case, therefore, present no error.

The judgment should be affirmed.

Jewks, Gayhoe, Rich and Miller, JJ., concurred.

Judgment of the County Court of Kings County affirmed.  