
    SUPREME COURT—APP. DIV.—SECOND DEPT.,
    June 4, 1909.
    THE PEOPLE v. VALENTINE WRIGHT.
    (133 App. Div. 133.)
    (1) . Larceny—Second Degree—Indictment.
    That an indictment for grand larceny in the second degree sets forth substantially the same facts in a second count in such a manner as to constitute a lesser offense does not vitiate it as for grand larceny second degree and a demurrer thereto on the ground that the facts charged did not constitute a crime is properly overruled.
    (2) . Trial—Witness—Cross-Examination as to. Previous Arrest.
    Where a defendant in a criminal action has testified that he has never been convicted of a crime and on redirect examination has stated that he has never been convicted of anything but being intoxicated, it is not error to permit the district attorney to ask on recross-examination whether his wife had not had him arrested for an assault upon her.
    <(3). Same—Credibility of Witness.
    The extent of the examination as to the credibility of a witness is within the discretion of the trial judge, subject to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character.
    (4) . Larceny of Oysters.
    Upon the trial of an indictment charging the larceny of oysters it is not error to refuse to charge that “ any oyster ground planted without written authority of the town board is not a legally planted oyster bed,” where the undisputed evidence showed that the owner of the bed had a license and there was no issue on that point.
    (5) . Trial—Charge—As to Reasonable Doubt.
    It is not error to refuse to charge that “ the indictment should be based on evidence which removes all reasonable doubt,” nor to refuse to charge that “ evidence of defendant’s previous good character in and of itself raises a question of reasonable doubt, no matter how strong the evidence against him may be,” where no evidence of good character was offered.
    
      Appeal by the defendant, Valentine Wright, from a judgment of the County Court of ¡Nassau county, rendered on the 26th day of December, 1908, convicting him of the crime of grand larceny in the second degree.
    
      II. Willard Griffiths, for the appellant.
    
      Franklin A. Coles, for the respondent.
   Woodward, J.:

The defendant was charged by indictment with grand larceny in the second degree, the facts constituting the crime being alleged to be the taking of about fifty bushels of oysters from the beds of one Henry ,F. Johnson in the town of Hempstead, ¡NTassau county. The same facts were, in substance, set forth in a second count under the provisions of section 279 of the Code of Criminal Procedure and constitute a lesser crime as defined by section 640 of the Penal Code (subd. 8). The defendant demurred to the indictment on the grounds that the acts charged did not constitute a crime, and, upon this demurrer being overruled, went to trial, the jury finding a verdict of guilty under the first count of the indictment. We think the demurrer was properly overruled. The County Court certainly had jurisdiction of the crime of grand larceny in the second degree, and the fact that the indictment set forth substantially the same facts in such a manner as to constitute a lesser offense, does not vitiate the indictment as for grand larceny in the second degree, and that is all that is now before this court.

"We are of the opinion that the evidence supports the verdict of the jury; that it shows that the defendant was engaged in taking oysters from the bed of Johnson; that there were at least fifty bushels of such oysters in his possession when discovered, and that these oysters were worth one dollar and twenty-five •cents per Bushel, and that they were taken under such circumstances as to justify the jury in finding that they were taken feloniously. While there was a decided conflict of evidence, it-'was for the jury to say whether they were convinced by the evidence beyond a reasonable doubt, and the evidence was sufficient for that result.

It is urged that the court erred in permitting the district attorney on cross-examination of the defendant to ask: “Did your wife have you arrested ?” The witness had been asked, without objection, if he had ever been convicted of a crime, etc. On redirect examination he had stated in answer to' his counsel that he had never been convicted of anything else than being intoxicated. Upon recross-examination he said he was not convicted for striking his wife. The question was then asked i “For an assault committed upon your wife?” This was objected to, no ground being given, and the defendant was permitted to answer, the defendant excepting. He answered: “I got ten days once. My wife did not have me arrested. A neighbor did.” We are of the opinion that the defendant, by bringing out the statement that the defendant had never been convicted of anything other than intoxication, opened the door to the question asked by the district attorney; it went to his credibility as a witness, and he had taken the stand as a, witness in his own behalf. As a general rule the range and extent of such an examination is within the discretion of the trial judge, subject, however, to the limitation that it must relate to' matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. People ex rel. Phelph v. Oyer & Term. County of New York, 83 N. Y. 436, 460, and authorities there cited. When the witness had testified that he-was never convicted for anything other than being-drunk, it was important, as showing his credibility, to ask whether he had, in fact, been convicted of other offenses, and a reading of the record shows that the witness could not have been prejudiced by what occurred—there was no abuse of the discretion.

There was no error in the court refusing to charge “that any oyster ground planted without written authority from the Town Board is not a legally planted oyster bed.” This rule, at most, only applies to those town boards which, under their original charters, had the right of fishery in adjacent waters; oysters planted in the waters outside of such townships do not require the consent of town boards. But the question presented here was purely abstract. It was in evidence, and there was no dispute, that Johnson had a license from the town board. There was some evidence which indicated that Johnson might be occupying more territory than his license called for, but this was not affected by the request to charge, and there was no issue of whether Johnson had a license or not—that was conclusively established and the court had so charged.

We have examined the alleged errors on the part of the court without finding them. The request to charge that “the indictment should be based on evidence which removes all reasonable doubt,” had nothing to do with the trial of the facts in this case; what should move a grand jury to act was not before the court. Likewise the request to charge that “evidence of defendant’s previous good character in and of itself raises a question of reasonable doubt, no matter how strong the evidence against him may be,” had nothing to do with this case, for the reason that the defendant offered no such evidence. People v. Brasch, 193 N. Y. 46, 66, and authority there cited. The court had correctly charged the law as to reasonable doubt, and the modification of defendant’s request to charge was proper.

The judgment appealed from should be affirmed.

Hirschbebg, P. J., Bure, High and Miller, JJ., concurred.

Judgment of the County Court of Nassau county affirmed.  