
    SUPREME COURT—APP. DIVISION—SECOND DEPT.,
    Sept. 10, 1912
    THE PEOPLE v. PHILIP GOLDFARB.
    (152 App. Div. 473.)
    Receiving stolen brass*—Evidence—Proof of guilty knowledge.
    Prosecution of a junk dealer for receiving brass valves, knowing that they had been stolen. Evidence examined, and- held, sufficient to sustain a finding that defendant received and sold the brass valves; but that the proof of his knowledge that they had been stolen was so slight that the conviction should be reversed for errors in the admis1sion of evidence.
    Appeal by the defendant, Philip Goldfarb, from a judgment of the County Court of Kings county, rendered against the defendant on the 10th day of December, 1910, convicting him of the crime of receiving stolen property.
    
      Martin T. Mantón (Benjamin M. Levy, with him on the brief), for the appellant.
    
      James G. Groysey, District Attorney (Herbert N. Warbasse and Mersey Mgginton, Assistant District Attorneys, with him on the brief), for the respondent.
    * See notes 12-48; 24-49.
   Thomas, J.:

The question is whether defendant, a dealer in old metal, was legally convicted of receiving on or about August 10, 1908, stolen brass valves, knowing that they had been stolen. Jacobs, whose store was 2‘74: South Ninth street, Brooklyn, had a large quantity of such goods, and in August and later they were stolen, and the evidence amply shows that one Fein, a plumber, occupying a basement at No. 272 South Ninth street, and a wood of coal bin in the basement of Nlo. 270, made an entrance into the cellar of Jacobs’ building and stole the valves. The defendant admits that his wagon took metal in bags and loose from Fein’s basement, although he denies that any new valves were included, but a person living in the building saw valves protruding from the bags. Fein was a tenant in defendant’s building, which was subject to a mortgage for borrowed money and owned by Fein, and checks were introduced indicating payments by each to the other, which defendant stated were given for payments on the mortgage, or in connection with it. A large number of new brass valves were on three occasions in August sold by defendant to one Watson at thirteen cents per pound, which was their market value as old metal or junk, but a relatively small portion of their value as new and usable material. These valves were in a large number taken by the police, and were found to be similar in style and make to those lost by Jacobs, and some of them were identified as Jacobs’ valves by remembered and. identifying defects. The evidence carefully considered sustains the finding that the valves were stolen by Fein from Jacobs, received by defendant and sold to Watson. But did the defendant know of the guilty possession of Fein ? This question must be studied with care and answered with caution. Defendant and Fein were friends and they lived in the same house; they had association in business transactions; defendant’s driver took the metal from Fein’s basement; defendant sold it and is presumed to know what he sold and that the large quantity of valuable valves, unused apparently, were ■ sold as raw material. He admitted that he hád sold material to Watson, but denied that new valves were included. So he admittedly bought material of Fein, which was taken always in full day with but one number intervening between the place of reception and the place of larceny; he sold and delivered openly; he admitted upon arrest sale of metals, but denied sale of new valves. If he knew that he sold this large number of new valves, his denial indicated concealment of guilty knowledge. But how could he but know that he had purchased, possessed and sold so many new valves, some of them unwrapped ? He dealt in plumbing supplies, including valves. Hence he could distinguish the new from the old; those suited for their primary purposes from those abandoned for sale' as old or defective material; what was salable per item from those salable -only per pound. There was evidence to sustain the conviction, but it is no more than sufficient. Hence the reception of the evidence and submission to the jury must be examined carefully, lest some error prejudiced the defendant. The appellant could complain of the use the jury was permitted to make of defendant’s conviction of another offense, had not the defendant’s counsel objected to the correction at the instance of the district ■attorney. But proof over defendant’s objection of what the witness Watson had told the district attorney was justified by no ■apparent hostile disposition of the witness, and admission of the ■conversation between the witness and the police officers was ■equally incompetent, and I in vain seek justification for the question that Watson had declined to testify elsewhere on the ground that his evidence might tend to incriminate him, and that as a result of a conference at the district attorney’s office the witness told the entire transaction between himself, and Goldfarb and everything relating to those valves. Then he was asked whether as a result an indictment was found against Goldfarb. That question he • did not' answer, and the evidence respecting his appearance before the grand jury was not under objection and exception'by the defendant’s counsel, theretofore unsuccessful in his attempts to-stem the tide of such inquiry. But'When the. defendant’s counsel sought to show why the indictment of the witness was not tried, he was precluded, although it might have shown under what 'inducement or duress Watson was testifying. So the People’s witness was presented' to the jury as a person accused by indictment of receiving from defendant these stolen goods, knowing of the larceny. There was no propriety in bringing in the extra judicial matters. The witness had at one time bought some valves at auction, he stated, but he had fully explained that he had made the purchases of defendant, but his alleged fault indicating hostility was in not knowing definitely whether the valves sold one O’Brien came from that source. It was upon this that the district attorney advised the court that “ We had to iudict him and bring him to trial to get any information at all.” The evidence of the People on the subject of the defendant’s guilty knowledge wTas too scant to permit such prejudicial statement, and conversation between witness Watson and the prosecuting officials and police officer. There was other manifest error. The People showed that such valves were not bought and sold by the pound, and yet when the defendant sought to show that there were metal dealers in Manhattan and elsewhere that dealt in Jenkins valves, he was precluded. It is no answer to show that the evidence was cumulative. It was an important consideration, and one that must have weighed heavily -against the defendant in the minds of the jurors, that new Jenkins valves were sold as raw metal by the pound. A man in Jenkins Brothers’ employment, over defendant’s legal protest, was allowed to testify that he had never heard of these valves being sold by the pound save in the present case. But the defendant was not suffered to make counter proof. One ruling was error, and that was made against the defendant.

The judgment of conviction should be reversed and a new trial ordered.

Hibschberg, Burr, ‘Carr and Rich, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered.  