
    SUPREME COURT—APP. DIVISION—SECOND DEP.,
    June 5, 1908.
    THE PEOPLE v. GEORGE RAINIER.
    (127 App. Div. 47.)
    Burglary—Identification.
    Evidence on the trial of an indictment for burglary, first degree, examined, and held, sufficient to identify the defendant as one of the persons who committed the crime, and judgment of conviction affirmed.
    Appeal by the defendant, George Rainier, from a judgment of the County Court of Kings county in favor of the plaintiff, rendered on the 23d day of September, 1907, convicting the said defendant of the crime of burglary in the first degree.
    
      L. B. Treadwell [B. W. Darling with him on the brief] for the appellant.
    
      Peter P. Smith \John F. Clarke, District Attorney, with him on the brief], for the respondent.
   Hookek, J.:

The defendant was convicted of the crime of burglary in the first degree, being assisted by a confederate actually present. (See Penal Code, § 496, subd. 3.) Of the facts of the breaking, the entering, that it was in the night time, that a human being was in the building, and that, if the defendant was one of the persons who performed the crime, he was assisted by another actually present, there is in the record abundant evidence. The argument is whether or not there is sufficient identification of the defendant as one of the persons who committed the crime. The occupant of the dwelling, who was in the building at the time, testifies that after the alarm he heard a noise on his roof as if a half dozen men were running across: the night watchman said that he heard a noise as if two men or boys were running across the roof of the building, and he followed the noise across the roofs of several buildings up to the roof of an apartment house; that he then took his station in a secluded spot about seventy-five or one hundred feet away from the entrance of the apartment house; that between ten and twenty minutes thereafter the defendant and a companion came out of the door of the apartment house and walked rapidly away; and that the witness following them placed them under arrest. The two men were taken to the station house and searched, but nothing of an incriminating nature was found upon them; they gave addresses which were not that of the apartment house. Within half an hour later the occupant of the dwelling and two or three officers went upon the roof of the house where the burglary had been committed, and there found some articles which might be used by burglars; they traversed the roofs of the intervening houses until they reached that of an apartment house Trap doors through the roofs were open on the apartment house and upon one of the houses intervening. It did not appear in the People’s-case that the two men arrested, one of whom was the defendant, had no business in the apartment house at that time, which was between twelve and one o’clock at night. In spite of. the fact that the night watchman swore with great positiveness that he saw the defendant and his companion emerge from the entrance to the apartment house, the identification was by no means satisfactory, for it was quite as possible that the defendant and his companion were emerging from the apartment house after having been lawfully there, as that they were the individuals that had been running on the tops of the adjoining houses. It will be seen that the defect in the People’s case was that there was no proof that the defendant and his companion were not in the apartment house on lawful business. However, the defendant’s companion was sworn as a witness for the defense and has, indirectly at least, supplied this deficiency in the proof. He testified that he and this defendant were at Coney Island during the evening in the company of two young ladies, and that at the time of their arrest they were on their way to take a street car, after having just escorted the young ladies to their homes, and that they were not inside the apartment house, but were arrested as they passed by it. In view of the testimony not explanatory of their presence there, but denying it, for all purposes in this case it may be taken as a fact that these men had no lawful business at that time of night in the apartment house. The jury have evidently done what they were justified in doing, namely, have considered the explanation of the defendant’s witness tantamount to an admission that the men had no lawful business in the apartment house, and have also believed the testimony of the night watchman, that the defendant and his companion actually emerged therefrom. The young ladies with whom it was said the men spent the evening were not sworn as witnesses. The evidence of the breaking and entering, the running of men across the roofs of the intervening houses to the roof of the apartment house, the open door leading to the roof of the apartment house and the emerging of the defendant and his companion therefrom upon the street within between ten and twenty minutes thereafter, and the fact that they had no lawful business therein, were, in my opinion, sufficient to warrant the jury in finding the defendant guilty of the perpetration of the act charged.

We conclude that the conviction must be affirmed.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment of the County Court of Kings county affirmed.  