
    The People of the State of New York, Respondent, v. Samuel Gerst, Appellant, Impleaded with Robert Levy and Florence Howard, Defendants.
    First Department,
    March 11, 1910.
    Crime — larceny — receiving stolen goods — principal.
    Mere proof that one consorting with a prostitute received from her part of the proceeds of a larceny, which she' committed is insufficient to make him a principal in the crime under section 2 of the Penal Law.
    Appeal by the defendant, Samuel Gerst, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York rendered against him on the 26th day of October, 1909.
    
      James E..Brande, for the appellant..
    
      'Robert O. Taylor, for the respondent.
   Scott, J.:

The defendant appeals from a judgment of conviction of grand larceny in the second degree. He. had been indicted for the crime of which, he was convicted and also for the crime of receiving stolen goods, knowing them to have been stolen. If his con viction had been for the latter crime we should have found no difficulty in sustaining it upon the evidence in the record, but we can find nothing therein to justify the submission to the jury of the charge of larceny. The subject of the larceny was money and jewelry stolen by a prostitute with whom the appellant appears to have maintained intimate relations. It was not contended that the appellant had actually participated in talcing the stolen goods, but it was sought to hold him under section- 29 of the Penal Code (now section 2 of the Penal Law of 1909) which makes a person who directly or indirectly counsels, commands, induces or procures another to commit a crime a principal in the crime committed. The only evidence relied upon to charge the appellant under this section is that some hours before the larceny the appellant and the woman were seen together, and that after the larceny she gave the proceeds, or part of it, to him. This was insufficient, and did not justify the inference that appellant counseled, commanded, induced or procured the woman to commit the theft set forth in the indictment. While there seems to be no doubt that the appellant became a partner in the fruits of the crime, there is no evidence that he was a participant in the larceny. It follows that the judgment appealed from must be.reversed and a new trial granted.

Olarke, McLaughlin, Miller and Dowling, JJ., concurred.

Judgment reversed and new trial ordered. Settle order on notice.  