
    The People, Resp’ts, v. Joseph Davis, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Criminal law—Reasonable doubt.
    When there is evidence upon which the jury might or might not entertain rational doubt, it is not for the court on appeal to say that the jury should have doubted, and given the defendant the benefit of that doubt by his acquittal.
    2. Larceny—Proof of corpus delicti.
    Proof that the complainant went in a closet and hung up his vest with his watch in it; that defendant followed him in, and came out immediately after him, and left the saloon; that complainant shortly after put on the vest, and after going 2,000 feet discovered that the watch was gone, is sufficient to establish the corpus delicti on a trial for larceny.
    3. Same—Circumstantial evidence.
    It is not error for the court to charge that it is quite as safe to convict on circumstantial evidence in a proper case as on direct, positive proof, where he also adds that the circumstances must lead to the conclusion of guilt of the party, and in no other direction.
    
      4. Same—Former conviction.
    Nor is it error for the judge in his charge to refer to a former conviction of the defendant for some other crime.
    6. Criminal law—Re-sentence.
    A person convicted of crime may be re-sentenced so that the termination of his sentence may be at the season required by the Code, where the original sentence did not so provide, and his rights are not prejudiced because his counsel is absent at the time.
    Appeal from judgment of the Albany court of sessions, convicting defendant of the crime of grand larceny in the second degree.
    In the charge to the jury the court said: “ Circumstantial evidence cannot very well lie. It is quite as safe for a jury to convict on circumstantial evidence, when a proper case is given, as it is on direct, positive proof. The direct, positive proof may be false; the circumstances cannot be false. But you must remember one thing, gentlemen, before you can convict any person of a crime on circumstantial evidence the circumstances must lead to the conclusion of guilt of the party, and in no other direction. If they lead in any other direction, and that some other party may be guilty, then the case is not made out and then the jury have no right to convict.”
    The court also said in the charge: “This man is entitled to have the same rules of law applied to his case as any other man, no matter if he was the best citizen in the state, the only difference is that he is unfortunate in having been convicted and that conviction stands against him.”
    The conviction took place in February, and defendant was sentenced to four years in state prison. He was subsequently brought again into court, and, in the absence of his counsel, and without-assigning new counsel, sentenced to four years and three months in said prison, the court stating that it was done for the purpose of bringing its expiration within the statutory limits.
    
      P. D. Niver, for app’lt; James W. Eaton, district attorney, for resp’ts.
   Mayham, P. J.

The defendant was convicted of grand larceny,, second degree, in stealing a watch. The facts relied upon to prove the larceny and the guilt of the defendant are stated by the complainant in his testimony substantially as follows: Complainant was tending bar, and at the same time doing work as a carpenter in a. saloon of his brother-in-law in Cohoes.

Defendant came in, and asked for a drink, which was refused; complainant then walked into a closet, and hung-up his vest, the pocket of which contained his watch; defendant followed complainant into the closet but came out immediately after complainant, and soon left, the saloon. About twenty minutes after placing his vest in the. closet the complainant went and got it and started for home, not noticing whether or not the watch was in the pocket, and after traveling about 2,000 feet he missed the watch. No further affirmative proof was offered by the People. The defendant was sworn in his own behalf and denied taking or knowing anything about the watch.

At the conclusion of the evidence on the part of the People and also at the conclusion of all the evidence the counsel for the defendant asked the court to discharge the prisoner on the ground that the evidence was insufficient to warrant the submission of the same to the jury. The court denied the motion and the defendant’s counsel duly excepted. And the judge thereupon charged the jury. To some portions of the charge the counsel for defendant excepted. The jury rendered a verdict of guilty. The counsel for defendant thereupon moved for a new trial pursuant to § 465 of the Code of Criminal Procedure on the-ground:

First: That the substantial rights of the defendant had been prejudiced.
Second : That the court misdirected the jury in matters of law.
Third: That the court refused to instruct the jury as prescribed by § 420 of the Code of Criminal Procedure. The court thereupon rendered judgment of conviction and sentenced the prisoner to the state prison for four years and three months,"from which conviction and sentence the defendant appeals. The counsel for the appellant now insists that the evidence is too slight to justify a conviction and that if the jury had fairly applied to this case the rule of law that gives to a prisoner accused of crime the benefit of every reasonable doubt, they would have acquitted the defendant.

That question, however, is always one for the jury under proper instructions from the court; and the jury were we think fully and fairly instructed upon that point by the learned trial judge. And ■when there is evidence upon which the jury might or might not entertain rational doubt, it is not for the court on appeal to say the jury should have doubted and given the defendant the benefit of that doubt by his acquital. Such a determination on appeal would transfer from the jury to the court the domain of doubt, and render any instruction upon that subject by the court to the jury useless.

Again, it is urged that the evidence fails to establish the corpus delicti. We think not. The proof shows that the complainant owned and had in his possession a watch. That watch was, without the knowledge or consent of the complainant, taken out of his possession and carried away or concealed by some active agency. It could not have gotten away from him without assistance. Such taking or removal from the possession of the owner, without his knowledge or consent, followed by concealment, was evidence of larceny. It proved that a crime had been committed, and thus established the corpus delicti. True, that alone did not prove who committed the crime; only that the crime had been committed. Who committed it ? The People relied upon the circumstances that the defendant was in a position to have committed it, and that no other person was in a situation to have done so. That reliance was wholly upon circumstantial evidence; and upon that kind of evidence the trial court made the remark to which the learned counsel for the defendant took an exception, which he argues here as a ground of reversal of this conviction.

We think the trial judge laid down the proper rule upon that subject, and that he did not overestimate the force and effect of that kind of evidence; qualified as his remarks were in his charge upon that subject. It is true that circumstances do sometimes mislead and point to an erroneous conclusion, but they sometimes point with unerring certainty to the truth. And we do not think that the rule was erroneously stated by the trial judge. Mor do we think the judge’s reference to the former conviction of the prisoner for some other crime error. Doubtless the jury in construing the circumstances and weighing the credibility of the defendant as a witness take that into the account.

It is also urged that the re-sentence of the prisoner was erroneous. This was done so that the termination of the period of imprisonment might be at the season required by § 697 of the Penal Code. It was a proper exercise of authority, and we think the absence of the prisoner’s counsel worked no wrong.

He was not deprived of counsel, nor were his rights in any way prejudiced or jeopardised by the absence of counsel at that stage of the proceeding. It was not a violation of § 8 of the Code of Criminal Procedure. People v. Trimble, 38 St. Rep., 997.

The conviction must be affirmed.

Putnam and Herrick, JJ., concur.  