
    The People of the State of New York, Respondent, v. Edward F. Gaynor, Appellant.
    
      Grand larceny — evidence as to the intoxication of. the'accused — it' should,not be limited to the day of the crime — a non-expert witness may testify that the accused was intoxicated-.
    
    On the trial oí a prisoner charged with the ofíense of grand larceny in the second degree, whose defense is based on the sole ground that he was in a state of beastly intoxication when the crime was committed; that he had no consciousness of what he was doing, and had no criminal intent in the- transaction, it is improper to refuse to permit a Witness called by the defense, who states that he remembers the defendant’s condition for several days prior to the day when the alleged crime was committed, to state “what that condition was,” audio limit the testimony to such as tends to show a condition of intoxication on the day of the crime but not before.
    A witness, although not an expert,, may testify in such a case to his conclusion as to whether the defendant was drunk or sober, and is not limited to a narration of the condition, action, conduct, etc.,'which he observed, without drawing therefrom a conclusion as to the defendant’s condition.
    Appeal by the defendant,, Edward F. Gaynor, from a judgment of the County Court of Cayuga County in favor of the plaintiff, entered in the- office of the clerk of the county of Cayuga on the 11th day of February, 1898,i upon the'verdict of a jury convicting Mm of the crime of grand larceny in the second degree; also from an order denying the defendant’s motion for a new trial, made upon the minutes, and also from an order entered in said clerk’s office on the 9th day of March, 1898, denying the defendant’s motion for a new trial made upon the ground of newly-discovei’ed evidence.
    The defendant was indicted at a term of the Supreme Court held in Cayuga county in January* 1.898, for the crime of grand larceny in the second degree alleged to have been committed in said county on the 30th day of November, 1897, in taking the property of Dr. Eugene S. Forman. This indictment was sent to the County Court of Cayuga county for trial. The trial was had in February, 1898, and the defendant was found guilty by the jury of the crime charged in the indictment and was sentenced to be confined in the State prison at Auburn for a term of one year and eleven months,, and thereafter the county judge of Cayug’a county, on the application of the defendant,. granted a certificate of reasonable doubt as to whether the judgment of conviction should stand.
    
      Robert L. Drummond, for the appellant.
    
      George W. Nellis, District Attorney of Cayuga, County, for the respondent.
   Ward, J.:

The offense of grand larceny in the second degree, of which the defendant was convicted, was predicated upon the following facts:

The complainant, Dr. Forman, a physician engaged in the practice of his profession, about jive o’clock in the afternoon of November 30, 1897, stopped with his horse and buggy in front of a barber shop in the city of Auburn, tied his horse to a post and entered the barber shop to get shaved, and when he came out, shortly afterwards, he found that his horse and buggy were gone, together with the i’obe and blanket, medicine case and a whip which were in the wagon, all of the value exceeding $200. The doctor saw the defendant on the opposite side of the street at the time he hitched the horse, walking along in thé usual way and no one with him. While the doctor was in the ba2'ber shop the defendant unhitched the horse, drove off with it through the streets at a violent rate, stopped at saloons, hitched the horse or left him in chai'ge of some person and passed in, obtained di’inks, resumed his drive until about six-thirty p. m. of that day, -when he was still continuing the driving, he was arrested ■ by a police officer of the city who. had heard of the loss of the. doctor’s horse and wagon. The defendant was driving fast, but was overtaken by the police officer. When the officer approached the defendant he started to make a stop and go up to the side of the street, and that slackened the horse’s speed a little so. that it gave the officer a chance to arrest him. The officer seized the lines and got into the wagon, and as he go.t in there it was dark. The defend- . ant said, “What’s.the matter?” The officer said, “I guess I want you over to headquarters'.” The defendant then said, “ 1 amt going ■ over'there, let me get out.” After some difficulty and resistance on the part of the defendant, the officer was enabled to complete the.arrest and.take the defendant to aplace of confinement. There was no question upon the trial as to these facts. The defense was based upon the sole ground that the defendant was in a state of beastly intoxication when the alleged crime .was committed; that he had no consciousness of what he was doing, and had-no criminal intent in the transaction.- .

The proof offered by the defendant was mainly- directed to showing this intoxication of the defendant. Charles-Gonboy, a brother of the defendant’s wife, was a witness for the defendant upon the trial. He testified that he heard of the taking of the doctor’s horse ; that at the time he was living in the same house with the defendant, and that he remembered his condition for several days prior to the day that the horse was taken. He was asked by the defendant’s counsel to state what that condition was.” The district attorney made a general objection to this evidence, which the court sustained. The defendant’s counsel then offered to show by this witness, “ who saw him daily,, the defendant’s condition in respect to intoxication, and being under the influence of liquor for several days prior to- the day that the horse was taken, and the same condition continuing down to within, a short time before it was taken. By the Court: I rule that you may introduce testimony tending to show a condition of intoxication on the day of the crime, but not before”’ to which the plaintiffs counsel excepted.

Witness then testified that on the day that the horse was -taken, and about three or -four o’clock in the afternoon, he'saw the defendant- come into a saloon in Auburn, and was asked by defendant’s counsel what condition the defendant was in when he came in, whether drunk or sober. To this the district attorney objected and the court said: “ I think you must let the witness describe his appearance and conduct. Let the jury draw the inference as to whether he was or was not. I will sustain the objection.” To which the defendant’s counsel excepted.

Several witnesses were introduced on the defendant’s behalf; persons who had witnessed people in a condition of intoxication, and they were asked to state the condition of the defendant on that day at about the time of the commission of the alleged crime as to intoxication or as to being drunk or sober, and the answer to these questions were rigidly excluded by the learned trial court upon the ground that the witnesses could only describe the condition, action, conduct or words, could detail what they saw or observed without drawing a conclusion as to the defendant’s condition; and the witnesses were not allowed to state their conclusions as to whether the defendant was intoxicated or otherwise. Exceptions were taken to the exclusion of this evidence in each instance.

These rulings present error of so important a character that it must lead to a reversal of the judgment of conviction.

As to whether a party at a given time is intoxicated, non-experts as well as experts can give an opinion. (1 Whart. Ev. § 451.)

The minute and peculiar appearances of a person, his acts, gestures, looks and other things which indicate a state of sobriety or of intoxication cannot be fully described, and a long line of cases in this State have established the proposition that the judgment or conclusion of an observer may be given upon the subject.

The Court of Appeals said in People v. Eastwood (14 N. Y. 566): A child six years old may answer whether a man (whom it has seen) was drunk or sober; it does not require science or opinion to answer the question, but observation merely; but the child could not, probably, describe the conduct, of the man so that, from its description, others could decide the question. Whether a person is-drunk or sober, or how far he was affected" by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct. Many persons cannot describe particularly; if their testimony were excluded, great injustice would freqilently ensue. The parties who rely on their testimony will still suffer an inconvenience, for the court and the jury are always most, impressed by those ■ witnesses who can draw and act a living picture before them of what they have seen, so that if there is any controversy as to the fact, such witnesses control; if there is no controversy, as to it, the general testimony answers all useful purposes.”

Whether the defendant was so far intoxicated.as not to be responsible for his acts in taking the horse and wagon was a closely contested question of fact upon the trial, and the defendant was entitled to have his witnesses present to the jury a living picture” of his condition.

The case cited is followed by and sustained in McCarty v. Wells (51 Hun, 171, 174); People v. Wright (136 N. Y. 630, 631); Ferguson v. Hubbell (97 id. 518); Felska v. The New York Central R. R. Co. (152 id. 344); Abb. Tr. Ev. 119, and cases cited.

We also think it was erroneous to exclude the evidence offered of the intoxicated condition of the defendant a few days before the commission of the alleged crime, leading up to the day of its commission. This evidence was competent as bearing upon his condition on that day. (People v. O’Neill, 112 N. Y. 362, 363.)

Prior to the enactment of section 22 of the Penal Oode there was some conflict in the authorities as to whether voluntary intoxication furnished an excuse for crime under any circumstances; but that section provides that, while no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by ■ reason of being in that condition, yet, where the purpose, motive or intent is a necessary element in constituting the crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the' intent with which the act was committed.

In larceny, an intent to deprive or defraud the true owner of his property, or of the use or benefit thereof, or to appropriate the same to the use of the taker, or of any other person, is essential to establish the crime. (Penal Code, § 528.)

The learned counsel for the appellant seriously urges the point that the learned trial court committed error in its charge to the jury in its statement of what the crime of grand larceny consisted. We have examined the exception taken to the charge upon this subject and do not find reversible error therein. The trial court charged that the jury must be satisfied of one thing — that the taking was with criminal intent, which the statute makes an essential in the crime of larceny — and presented to the jury a synopsis of section 528 as the law, as follows: “A person who, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person; either takes from the possession of the true owner, or of any other person, any money, personal property, or article of value of any kind, steals such property, and is guilty of larceny.”

This statement of the law was correct with reference to the case before the court.

Affidavits were presented by the defendant to the trial court upon a motion for a new trial upon the ground of newly-discovered evidence. The motion was denied, and the. appeal herein brings up the question of the correctness of that decision. We. need not,, however, consider this appeal, as the conclusions which we have reached will result in a new trial of the defendant.

The judgment of conviction and- the order denying the motion for a new trial upon the merits and exceptions should be reversed and a new trial ordered.

All concurred.

Conviction, judgment and order denying motion for .a new trial ■ on the merits reversed and a new trial ordered.  