
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    March 28, 1911.
    THE PEOPLE v. MAURICE JOSEPHS.
    (143 App. Div. 534.)
    (1.) Evidence—Corroboration of accomplice. The question as to whether there be any evidence tending to convict a defendant of the commission of a crime, where the main proof is that of an accomplice, is one of law for the court; but its sufficiency is a question of fact for the jury.
    (2.) Same—Larceny—Recommendation of defendant by accomplice. In a prosecution for larceny in the first degree for aiding and abetting another to commit theft, testimony by a woman who actually committed the theft while employed as a domestic, that she was induced to do so by the defendant, is not corroborated by proof that the defendant enabled her to obtain her employment by forging a letter of recommendation, if it do not appear that when she accepted the employment there was any mutual purpose to commit the crime.
    (3.) Same—Must connect defendant with crime itself. Evidence corroborating the testimony of an accomplice must connect the defendant with the crime itself, not merely with the person who committed it.
    (4.) Same—Sharing in fruits of crime not sufficient. Nor is the testimony of such accomplice corroborated by the fact that the defendant shared in the fruits of the crime by pawning the stolen articles, in the absence of independent evidence that he counseled, induced, ¡directed or aided the commission of the crime.
    Appeal by the defendant, Maurice Josephs, from a judgment of the County Court of Queens county, rendered on the 28th. day of October, 1910, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment, and also from an order, made on the 28th day of October, 1910, and entered.in the office of the clerk of the county of Queens, denying his motion for a new trial on the ground of newly-discovered evidence.
    
      Abraham Levy, for the appellant.
    
      Fred G. De Witt, District Attorney, for the respondent.
    
      
       See Notes, Vols. 5-216; 7-130; 9-109; 11-529; 24-7.
    
   Carr, J.:

The defendant was indicted for grand larceny in the first degree and convicted thereof in the County Court of Queens County. From the judgment of conviction he appeals to this court. The articles stolen consisted of jewelry of the value of $2,500. It was the contention of the prosecution that, while the actual stealing was done by a woman named Weldon, the defendant aided and abetted in the theft, and counseled and induced the said Weldon to commit the crime. The conviction was procured upon the evidence of Weldon, and the important question now involved is whether the testimony of Weldon, an accomplice, has been corroborated by independent proofs, as required by section 399 of the Code of Criminal Procedure, which provides as follows: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” The jewelry which formed the subject of the larceny was owned by a Mrs. Oppenheimer, by whom the woman Weldon was employed as a nurse maid. On the night of the larceny there articles were kept in a bureau drawer in Mrs. Oppenheimer’s room. Weldon testified that the defendant, with whom she had maintained illicit relations, sent to her, on the day of the larceny, a registered letter inviting her to meet him at the railway station in Far Rockaway, which was near the residence of Mrs. Oppenheimer. In response to this letter,, she met the defendant. He then by promise of marriage and by threats of violence tried to induce her, Weldon, to return to-the house and steal the jewelry of her mistress. At first she-refused, but finally she yielded to the combined persuasion and threats, returned to the house, stole the jewelry, delivered it to-the defendant and went away with him. She swore that the-defendant pawned the jewelry, and subsequently anonymously returned the pawn tickets to Mrs. Oppenheimer by express package. As a part of her testimony it appeared that when she applied for employment by Mrs. Oppenheimer she presented a letter of recommendation from a supposed former employer,, which letter was spurious, as it was in fact written by the defendant for the purpose of securing her employment. Proofs were offered to show, independently of her testimony, that the-letter of recommendation was in the handwriting of the defendant. These proofs were the only evidence received to corroborate the testimony of Weldon as to the defendant’s participation in the larceny, and are the only evidence pointed out by the prosecution on this appeal as tending to corroborate Weldon’s testimony against the defendant on this point. The rule of law applicable to this situation is that the question whether there be any evidence tending tp connect a defendant with the commission of a crime, where the main proof is that of an accomplice, is a question of law for the court, and its sufficiency a question of'fact for the jury. (People v. Plath, 100 N. Y. 590; People v. Mayhew, 150 id. 346, 12 N. Y. Crim. 404; People v. O’Farrell, 175 id. 323, 17 N. Y. Crim. 409; People v. Patrick, 182. id. 131, 19 N. Y. Crim. 132; People v. Kathan, 136 App. Div.-303; People v. Weiss, 129 id. 671.)

Weldon went into the employment of Mrs. Oppenheimer in April, 1909, and then presented the spurious letter of recommendation written by the defendant. The theft occurred in i June, 1909. It does not appear from Weldon’s testimony that she went into Mrs. Oppenheimer’s employment with any mutual purpose at that time between her and the defendant that ,a crime should be thereafter committed. According to her story, the first attempt of the defendant to induce her to commit a theft of Mrs. Oppenheimer’s jewelry was shortly after she went into Mrs. Oppenheimer’s service in April, 1909. This ^attempt, however, was not successful. Weldon testified that "the next time the defendant urged her to steal the jewelry was on June 9, 1909, in Eew York city, where she met him on his-"request, and that he followed up this counseling and solicitation “until the night of the larceny, the date of which does not appear specifically.

Unquestionably the independent proof as to the spurious letter of recommendation does connect the defendant with the actual thief, but that in itself is not enough to satisfy the statute. It is not with the thief that the connection must be had, but with the commission of the crime itself. Nor would it be enough that "the defendant was shown to have been a partner in the fruits of the crime, without independent evidence that he had counseled, induced, directed or aided in the commission of the crime. (People v. Gerst, 137 App. Div. 272.) The proof of the spurious letter in April, taken with the testimony of Weldon, does mot show that it was made as a part of a plan or conspiracy to -commit a theft at some later time. It is a very suspicious circumstance, but it does not tend in itself to connect the defendant with the commission of a crime which took place several "months later. For this reason the judgment of conviction, and. -orders, must be reversed and a new trial ordered.

Jenks, P. J,, Burr, Thomas and Rich, JJ., concurred.

Judgment of conviction of the County Court of Queens <aounty, and orders, reversed and new trial ordered.  