
    People v. Williams et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 26,1890.)
    1. Larceny—Evidence—Corpus Delicti.
    On a trial for larceny, complainant testified that defendants, on making a small purchase at bis store in the evening, offered in payment a $20 bill, for which he gave them in change $19 taken from a package of bills which he had counted in the morning when he placed it in his safe, which was kept locked; that one of defendants requested the return of the $20 bill, saying that he had found change to pay for the article bought, whereupon complainant returned the $20, and received what he supposed to be the money he had parted with, and replaced it in the package without counting it; that afterwards, on being asked by a police officer if he had lost any money, he counted the money in his safe, and found that the package of bills contained $10 less than the proper amount, allowing for bills which he had placed in and taken from it during the day; but he could not swear positively how many times' he had put bills in or taken them out of the package that day. His assistants in the store testified that they did not interfere with or take any bills from the package that day. Held, than there was sufficient evidence-to establish that the crime charged was committed.
    <$. Same—Evidence of Motive.
    In such case, evidence of other acts of defendants of a somewhat similar character, on the same evening, is admissible to show motive.
    S. Criminal Law—Sentence—Fine and Imprisonment.
    In pronouncing sentence on conviction of larceny, the presiding judge stated, as a reason for imposing a fine, in addition to imprisonment, that defendants had put the county to the expense of three trials by jury. Held that, as the sentence was within the limits of the jurisdiction of the court, the appellate court would not interfere with it.
    Appeal from court of special sessions of the city of Albany.
    Indictment against Thomas Williams, William Ferguson, and Thomas Rogers, for petit larceny, alleged to have been committed in stealing $10, the property of one George A. Dayton. The evidence of the complainant shows that, on the morning of the day of the alleged larceny, he counted the bank-bills kept by him in a package in the inner compartment of the safe in his store, and that there were in that package $224 in bills, the denomination of which he could not state; that he locked the inner compartment where the money was with a key, and put it under a shelf; that the outer door of the safe was locked by a combination lock; that, in his business as confectioner, he was ■assisted by his wife and a Miss Reed; that he did not at any time during the day, from the time of counting the money in the morning until the time of the alleged larceny, interfere with that package, except once to put with it a •$2 bill, and take out a $1 bill; that, about 7 o’clock in the evening, Ferguson and Williams came into the store, and asked to purchase some candy, and, on being served, handed a $20 bill in payment, and, on being asked if they had anything smaller, answered in the negative, whereupon complainant went to the safe, opened the inner compartment, and took out $19, and handed it with the change to Ferguson, and received the $20 bill. Defendants then walked towards the front of the store, and complainant towards the safe, when Ferguson, addressing complainant, asked him to return the $20 bill, as he had found change, and did not like to be carrying about small change; and, pursuant to that request, complainant returned to the defendant the $20 bill, and received back what he at the time supposed was the money he had parted with, but which he returned to the safe without counting. Soon after that he was asked by a detective if he had lost any many. On examining the package in the safe, he found that it contained but $215. On his cross-examination, the complainant said he paid his help that day, and would not swear positively how many times he put bills in or took them out of that package that day. Did not remember how many times he went in the safe and made change from these bills, positively. Miss Reed and Mrs. Dayton, who assisted in the store, both testified that they did not interfere with or take any bills from this package in the inner compartment of the safe that day. This is the substance of the evidence tending to establish the corpus delicti. The prosecution then called as a witness a druggist, who was permitted by the court, under defendants’ objection, to testify that, on the same evening of the occurrence charged in the complaint, the defendants Ferguson and Rogers- bought a cake of soap, and tendered a $20 bill in payment; and, on being asked if they had anything smaller, answered in the negative, and the-bill was taken, and $19.80 returned to them in change. Ferguson requested the return of the $20 bill, and offered the change for the soap, but was refused, and, before leaving, the defendant Rodgers bought a stick of licorice, and tendered in payment a $5 bill, and the clerk refused to change it, and told him to pay at some other time. The prosecution proved, under like objection, that, on the same evening, the defendants Ferguson and AVilliams called at a tea-store, and purchased a half-pound of tea for 25 cents, and Ferguson handed in payment a $20 bill, and received in change $19.75, and, after receiving it, said he could pay for the tea in change, and requested the-return of the $20 bill. The clerk looked over the money which defendant proposed to return, and then got the $20 bill, and gave it to Ferguson. Defendant Rogers came in the store while the other two defendants were there, and purchased a pound of sugar, at 7 cents, and paid for it, but did not speak to the other defendants. Under a similar objection by the defendants, the people also proved that on the same evening Ferguson and AVilliams went, into a restaurant, and bought 25 cents worth of cigars, and handed a $20 bill in payment, and received $19.75 in change, after which one of them found he had a quarter, and requested the return of the $20 bill, and, when it was given them, they shoved back the change, which was put in the drawer, and, on making the account later in the evening, the account was found to be short $10. The jury found defendants guilty. In passing sentence, the court said: “The sentence of the court is that you be confined in the Albany county penitentiary at hard labor for a period of one year; and inasmuch as. you have put this county to the expense of three trials by jury in this court, in addition to the sentence already pronounced,'you shall each pay a fine of five hundred dollars, or stand committed to the Albany county penitentiary for five hundred additional days. ” Defendants appeal.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      James C. Matthews, for appellants. Andrew Hamilton, for respondent.
   Mayham, J.

We think the evidence sufficient to establish a corpus delicti, and that the finding of the jury that the crime charged was committed is fully sustained by the evidence. The appellants insist that the learned recorder erred in admitting without objection the evidence of the acts of these defendants at other stores on the same evening of a somewhat similar character to that at the store of Dayton. This evidence was doubtless offered by the people for the purpose of showing the motive of the purchasers in tendering the $20 bill, and receiving other and necessarily smaller bills in exchange, so that they might abstract one or more of the smaller bills, and return the balance unobserved, in exchange for the $20 bill, and thus steal the bill or bills so abstracted. Such a device artfully practiced by a shrewd operator might easily deceive the unsuspecting tradesman in the hurry of business, and there is some evidence in this case that it has become one of the methods of larceny under the name of “Aim Aam.” The defendants’ counsel relies upon People v. Corbin, 56 N. Y. 363, and Coleman v. People, 55 N. Y. 81, as authorities in support of his objections to this evidence. In the case Arst above cited, the court held that it was not proper on the trial of an indictment for forgery to prove that the defendant liad admitted that he had committed other forgeries, and in the latter case that it was not competent, on the trial of an indictment for receiving stolen goods, to show for the purpose of proving the scienter that the prisoner had received other stolen property. Neither of these cases comes entirely within the principle under which the evidence in the case at bar was offered and received. They were not offered to be shown proximate in time nor precisely identical in character with the crimes charged in the indictment.

We think the case now before this court is more nearlyin principle like the case of Weyman v. People, 4 Hun, 517, afiirmed 62 N. Y. 623, and the cases there cited. In that case it was held to be competent for the people to show that on the day of the alleged commission of the crime charged, and on the next day, the prisoner in the same way, and by the same means, procured similar articles of other persons, and the court says such evidence “is competent to show that the party accused was engaged in other similar frauds about the same time, provided that the transactions are so connected as to time, and so similar in their relations,-that the same motive may reasonably be imputed to them all.” See, also, Hall v. Naylor, 18 N. Y. 588; Hennequin v. Naylor, 24 N. Y. 139. This kind of evidence is frequently resorted to in the trials of indictments for passing counterfeit money, and the object of such testimony is to prove that the act is not an isolated or accidental occurrence, but that it was done by deliberate design. We think this evidence, under the circumstances of this case, was proper, and that the exception to its admission was not well taken. We discover no error in the admission of evidence, or in the charge of the recorder to the jury, and the jury having found the defendants guilty upon evidence sufiieient to uphold the verdict, we think the judgment of conviction and sentence pronounced were proper. It is quite true, as is urged by the counsel for the defendants, that the right of trial by a jury is guarantied to the defendants, and they are in no way responsible for the failure of two previous juries to agree, and that fact alone should not aggravate their punishment. But the judgment and sentence pronounced was within the limits of the jurisdiction of the court which pronounced it, and we do not think it is the province of this court on this appeal to criticise or interfere with it. Judgment of conviction is affirmed. All concur.  