
    SUPREME COURT—APP. DIV.__SECOND DEPARTMENT,
    July 25, 1913.
    THE PEOPLE v. MORRIS JACOBS.
    (158 App. Div. 293.)
    (1.) Burglary —Grand Larceny—Receiving stolen goods—Evidence OF burglary not connected with crime charged.
    Upon the separate trial of a defendant indicted with his brother and another for burglary in the third degree, grand larceny in the first degree as a second offense, and for receiving stolen goods, it was error upon the counts for burglary and larceny to admit evidence of witnesses that certain goods, not specified in the indictment, and in no way connected with the crimes charged therein, had been stolen from them at different times, and that their respective places had been burglarized.
    (2.) Same—Guilty knowledge.
    Such evidence was also inadmissible upon the charge of receiving stolen goods, to show guilty knowledge, inasmuch" as there was no proof that the property was taken by the same thief and brought to the same person.
    (3.) Same—When failure of defendant to reply, does not make testimony of declaration in his presence competent.
    Testimony of a detective who visited the house of the defendant, that the brother of the defendant said to a third person, “ For God’s sake, get that stuff out of the way, and the fur coat. I think the bulls are wise. We made a bum job of it,” was incompetent either upon the theory of a declaration of a coconspirator or upon the principle that the defendant was silent when he should have spoken.
    Appeal by the defendant, Morris Jacobs, from a judgment of the County Court of Kings county, rendered against him on the 16th day of December, 1912, convicting him of burglary .in the third degree and grand larceny in the first degree as a second offense.
    
      
      Robert H. Roy, for the appellant.
    
      Edward A. Freshman, Assistant District Attorney [James C. Cropsey, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief], for the respondent.
    
      
       See Note, Vol. 27, page 426.
    
   Jenks, P. J.:

The defendant, his brother H. Jacobs, and Skelsky were indicted for burglary in the third degree, grand larceny in the first degree as a second offense, and for receiving stolen goods. Separate trials were demanded, and the defendant was tried first. He appeals from a judgment of conviction of the first two crimes named. The indictment charges commission of these crimefe on October 31, 1912, that the burglary was committed upon the premises of H. Gruskin and his was the property taken and received. Several witnesses were permitted to testify that certain goods not specified in the indictment, and in no way connected with the crimes charged therein, had been stolen from them at different times, and that their respective places had been burglarized. Such evidence was not admissible upon the counts for burglary or grand larceny. (People v. Sekeson, 111 App. Div. 490, 20 N. Y. Crim. 24; People v. Molineux, 168 N. Y. 305, 16 N. Y. Crim. 120.) The rule is well expressed by Brooks, J., writing for the Court of Criminal Appeals of Texas, in Hunt v. State (60 S. W. Rep. 965), that evidence of a separate burglary is not admissible when it “ has no connection with, dependence upon, or does not illustrate the offense on trial.” It is but just to the trial court to say that its sole theory of admissibility as stated in its charge was “ the purpose of showing to you whether the accused here upon trial had guilty knowledge of the act,” and it will be remembered that the defendant was then upon trial for the crime of receiving stolen goods as well as for the other crimes. But I think the learned court, in admitting this proof upon the charge of receiving, fell into error, inasmuch as there was no proof that the property was taken by the same thief and brought to the same receiver. (People v. Doty, 175 N. Y. 164, 17 N. Y. Crim. 366.) The jury returned its verdict as “ guilty of all the charges, burglary in the third degree, grand larceny in the first degree, and receiving stolen goods,” whereupon the court said: “ Mr. Foreman, I think I will permit you to omit the last. We will just take the burglary and the grand larceny. As amended, that is your verdict, all of you? The Foreman: Yes, sir. The Court: As a second offender? The Foreman: Yes, sir.” And the verdict was recorded in accord. In effect, the court dismissed the count for receiving stolen goods, and, therefore, in no event should evidence which, if admissible at all, was relevant only upon that count, have been permitted to remain in the case.

Two detectives of the police force went to the abode of the defendant at 7:45 n. m. H. Jacobs, his brother, opened the door to them. The appellant, who was found in bed, explained his position by statement that he was suffering from a recent stab wound. Skelsky and two women were found in that room at this time. One of these detectives was allowed to testify that H. Jacobs said to one of the women. “ For God’s sake, get that stuff out of the way, and the fur coat. I think the bulls are wise. We made a bum job of it.” The witness testifies that when he heard the remark he was two feet away from the defendant. It does not appear that the defendant said anything. The three men were taken away by the detectives, who returned for a search that revealed various garments, including a fur coat which was owned by the prosecuting witness, and which was specified in the indictment. It seems to be conceded that these words meant that the police had some knowledge pointing to the particulars of the crime, and that the speaker and at least another had not covered their tracks. I think that there was not sufficient proof of any conspiracy to make the testimony competent upon the theory of a declaration of a coconspirator, but if there had been such proof, the testimony was not incompetent upon the ground urged by the learned counsel for the appellant, in that it was subsequent to the ending of the common enterprise, provided that it appeared that the stolen goods were held for further disposition. (People v. Storrs, 207 N. Y. 147, and cases cited.)

I have grave doubts whether the proof made this testimony evidence against the defendant upon the principle that he was shown to be silent when he should have spoken. Proof of this character is not receivable as evidence of the truth of the accusation, but to show that it called for reply, and, thence, the acquiescence of the accused if he made none (People v. Kennedy, 164 N. Y. 456, 15 N. Y. Crim. 241; People v. Koerner, 154 id. 355, 12 N. Y. Crim. 503; Whart. Crim. Ev. [10th ed. Hilton] §§ 679, 680.) It does not plainly appear that the defendant heard the words or comprehended them, or that they involved his conduct, or that they were of a character which would naturally call for a reply from him; and moreover, it appears that they were addressed, not to him, but to a third person. (See Wharton, supra, § 680, citing inter alia Kelley v. People, 55 N. Y. 565, 571; People v. Koerner, supra.) This kind of proof is characterized as most dangerous, receivable with great caution, and inadmissible unless the statements testified to naturally call for contradiction (People v. Cascone, 185 N. Y. 329, 20 N. Y. Crim. 175.) It may well be that this testimony may be made competent evidence upon a new trial, but upon the present record I think that it was inadmissible. The learned assistant district attorney contends that the court should disregard any errors, inasmuch as the proof of guilt is cogent and uncontradicted. But I think that we cannot conclude that the errors were not harmful in this case. Of course, if competent evidence pointed 'distinctly to the guilt of the defendant, if he had been caught red-handed, mere errors in the admission of evidence might be disregarded, but as the learned court said to the jury, the evidence was “ all circumstantial ” and it was chiefly confined to the possession of the stolen property.

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

Carr, Rich, Stapleton and Putnam, JJ., concurred.

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