
    The People of the State of New York, Respondent, v. Joseph Zuckerman, Appellant.
    First Department,
    July 13, 1909.
    ' Crime — attempt to commit larceny — facts justifying conviction.
    Appeal from a judgment convicting defendant of'an attempt to commit the crime of grand larceny, second degree, hy changing the address on an express package so that it was delivered to him. Evidence examined, and held, that the judgment should he affirmed.
    Appeal by the defendant, Joseph Zueberman, from a judgment of the Court of General Sessions, of the Peace in and for the county of New York in favor of the plaintiff, rendered on the 11th. day of November, 1908, convicting the defendant of the crime of an attempt to commit grand larceny iir the.second degree.
    
      Alexander I. Hahn, for the appellant.
    
      Alexander A. Mayper, for the respondent.
   McLaughlin, J.:

The defendant appeals from a judgment convicting him of attempting to commit the crime of grand larceny in the second degree, for which he was sentenced to State’s prison for a term of two years and four months.

The evidence on the part of the People tended to show that on the 1st of November, 1907, a firm by the name of Ginsburg & Brother, who did business in the city of New York, consigned a package to P. Diamond, at Putnam, in the State of Connecticut, and delivered the same to the Adams Express Company for shipment; that there was pasted on the wrapper around the package the name of the consignor- and the consignee and his address; that some time after such delivery to the express company, one of its employees discovered that there was pasted over the-original label another one, from which the package purported to be consigned by I. Feldman, importer, or Feldman & Co., to “ J. Zuckerman, 62 East 113 street,” as consignee; that the police department was thereupon notified and an arrangement made-by which one of the express company ’s employees, accompanied by a detective of the police department, delivered the package to the defendant at the address given ; that after Zuckerman received the package and'receipted-for it and paid the express charges thereon, he .was immediately placed under arrest; that after his arrest he stated to the officer who had him in charge that he expected to receive a package from I. Feldman for a friend of his; that, the officer testified, he asked him who the friend Was and the defendant refused to state, and' when asked what Was the address of Feldman or Feldman '& Go., he stated - “ where the label says- they are from; ” and that no such person as Feldman or Feldman & Co. could be found at the address on-the label, nor could any such name be found in any of ’the directories of the city;

Keither the defendant nor any witnesses were sworn in his behalf, nor did he offer any evidence whatever.

1 think the evidence presented on the part of t.h'e People estab- . lished a prima facie case against the' defendant which required submission to the jury. It was proved beyond a question' that some one had placed the false Feldman label, over the. true Gtinsburg'one while the ¡lackage ivas in the express company’s office. From .this the jury was justified in- finding that such false label was placed there by some person with intent to steal-the' package, and this, taken in. connection with the fact that the defendant was the consignee náméd ; that lie received the package at the'address given and receipted for it -and paid the express charges thereon ; that he - stated- to, the officer who made the arrest that he expected a package - from a concern which could not be found, for a “ friend ” who had asked him to receive it; and his refusal tó give the name of the “friend” of to offer any other explanation justified the jury in find^ing, in the absence of any evidence to the contrary^ that he was such person, or that it Was some person acting'in concert with him. In the-latter case the defendant was just as much a principal as the one who acted with him. (Penal Code, § 29; People v. McKennq,, 118 App. Div. 766.) The intent to steal the package, under such circumstances, seems to be the -only reasonable; conclusion which / can be reached. (McCarney v. People, 83 N. Y. 408; People v. Klein, 117 App. Div. 196; People v. Darrow, 69 id. 615; affd., 171 N. Y. 697.)

Several errors are alleged, but an examination does not disclose that the defendant could have been prejudiced by them, or that they are of such a character as would justify a reversal of the judgment.

The judgment of conviction is, therefore, affirmed.

Ingraham, Latjghlin, Olaeke and Houghton, JJ., concurred.

Judgment affirmed.  