
    The People of the State of New York, Respondent, v. Gertrude Morral, Appellant.
    Second Department,
    November 23, 1910.
    Evidence —larceny —■ proof of prior unrelated crime'.
    On the trial of an indictment charging the defendant with stealing a purse from a customer in a department store, it is error to admit evidence that on a prior occasion the defendant, in the same store jostled another person in the elevator . and took her purse, that being a distinct crime- in no manner connected with that charged. • x .
    Appeal by the defendant, Gertrude Morra;!, from a judgment of the County Court of Kings county, rendered against her on the 2d day of March, 1909.
    
      John T: McGovern, for the appellant.
    
      Peter P. Smith [John F. Clarice with him on the brief], for the. respondent.
   Rich, J7:

This appeal is from a judgment of the County Court of Kings county convicting the defendant of the crime of grand larceny' in the second degree. The evidence upon which the conviction was had' was circumstantial. The rule is well settled that in' determining a question of fact from circumstantial evidence the facts proved must all be consistent with and jioint to the guilt of the accused, and must be inconsistent with his innocence. As was said in Shepherd v. People (19 N. Y. 537, 545): “ In such cases the circumstances themselves must be satisfactorily established, and they must be of such a character as, if true, to exclude,' to a moral certainty, every other hypothesis but that of the guilt of the accused.” Tested by this rule the evidence in the case at bar is insufficient to sustain .the conviction of the defendant.

Lillian Rosenblatt, the complaining witness, on December 14, 1909, went to the store of Abraham & Straus at .about a quarter to four in the afternoon, to do some shopping, and remained there until half-past four.'. She carried with her a bag, inside of which was a smaller bag containing her money. At the soda counter she was crowded and pushed by some-woman, not identified as the ■defendant. ■ She. did not look -to- see- who was doing the pushing, but shortly after found her bag open and the- smaller bag with its contents, gone. She- later identified a bag found in the store as the one taken. A detective in the store at this time saw the defendant" at the soda water counter a little after half-past four. His attention was directed to her because she had two bags which he says he observed carefully from a distance of ten feet and discovered that the smaller-bag had a tear in its upper cornér. This bag was carried openly on her arm by the defendant and was plainly visible to any one looking at hei\ A-police officer, detailed for duty, at the sanie' store, saw the defendant there in the afternoon of December fourteenth at about five o’clock. He saw her open a bag earned by a lady, and upon -inquiry of the latter was informed nothing had been taken from it. He watched defendant, and a few minutes after saw her open the bag of another lady, from which nothing is shown to have been taken, and he then arrested her. Defendant was subsequently taken to the police headquarters, where she was searched and something over fifty-nine dollars was found in her bag. The police officer had .the defendant constantly in view from the time he arrested her until they reached police headquarters, and, saw no second bag in her possession at any time, and it is apparent, I .think, from his. evidence, that she could not have had another bag in her possession without his having seen it, and he testifies he saw nothing of "the kind. A short time after the arrest a store detective found on a pile .of cushions, hear which defendant had .passed with the police officer, a bag which Mrs. Rosenblátt identifies as belonging to her. The bag had a hálf-incli tear in one corner, by which Ditman claims to identify it as the same bag he saw in the possession of the defendant when he saw her at the soda counter some half-hour before her arrest. The only evidence connecting the defendant in any manner-with the commission of the-crime is that of Ditman, and'his identification of the bag is based entirely and solely upon the tear in the corner, which Mrs. Rosenblatt says was-not in her bag when taken from her. Ho such .tear was observed by eithfer Mary Clark, who found the bag, the person to whom she delivered it, or the police officer to whom it was subsequently delivered. It was seen by ho person except Ditman.

While the evidence strongly tends to establish attempted crii-ni-' nal acts by defendant while in the store of'Abraham & Straus, it is insufficient to warrant her conviction of the crime charged in the indictment.

There is another reason why this conviction must be reversed. Upon the trial the People were permitted to prove, over the defendant’s objection, that on November thirtieth, preceding the occurrence for which the defendant was arrested, one Mary Pryor was jostled while riding on an elevator in the store of Abraham & Straus by the defendant and her purse taken. This was evidence of a distinct and separate 'crime, in no manner connected with the crime charged in the indictment and necessarily prejudicial to the defendant. It does not come within any of the exceptions to the well-established rule that “ the State cannot prove against-a defendant any crime not alleged jn the indictment, either as a foundation for a separate punishment' or as aiding the proofs that he is guilty of the crime charged.” (People v. Spier, 120 App. Div. 786.)

It follows that the judgment of conviction must be reversed and a new trial ordered.

Woodward, J., concurred; Burr,- Thomas and Carr, JJ., concurred on the last ground stated in the opinion.

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