
    
      Supreme Court, General Term, First Department.
    
      January, 1888.
    PEOPLE v. KEEPERS.
    
      Proof of criminal intent—evidence of similar transactions.
    
    Upon the trial of a defendant for a criminal offence, proof that defendant was engaged in transactions similar to that under investigation is admissible on the question of intent if these transactions are so connected as to time and so similar in their other re-j lations that the same motive might be reasonably imputed to them all.
    Upon a trial for larceny defendant was asked by the prosecution whether he had not upon his person some pawn-tickets when he was arrested, and also whether he recollected the diamond ring and stud pawned at a specified place with a person named, more than three years before the time of the larceny with which defendant was charged. Ndd, that the admission of this evidence against the defendant’s objection was error.
    Appeal by the defendant John Keepers, Jr., from a judgment entered in the court of general sessions of New York city and county upon a conviction of larceny in the first degree.
    The facts appear in the opinion of the court.
    
      Abraham Suydam, for defendant appellant.
    
      John R. Fellows, (district attorney), McKenzie Semple, (assistant), for the people, respondent.
   Brady, J.

The appellant was indicted for grand larceny, and the charge against him was that on the 16th of August, 1882, he went into the place of business' of the plaintiff in this «city and stated that he had a customer for a pair of diamond earrings. He was known at that time as a diamond broker, and selected a pair of earrings of the value of $768, which were delivered to him upon the terms expressed in the following:

These goods are on memorandum and not charged to account, and are returnable on demand; or, if sold, to be paid for in cash.”

It was insisted upon the argument that the evidence was wholly insufficient to warrant a conviction, there being none whatever showing a felonious intent.

The case of Weyman v. The People (4 Hun, 511 ; affirmed by the court of appeals, 62 N. Y. 623) was commented upon and a distinction drawn between it and the present one in this respect, namely, in that case there was evidence of felonious intent existing at the time the goods were obtained, whilst here the evidence proved nothing except that the goods were obtained and were not returned nor paid for.

The proposition seems to be that the felonious intent, if any, was a subsequent creation.

It is not deemed necessary to dwell long upon that element of the case. It was submitted to the jury with proper instructions and unquestioned accuracy as to the rules of law by which the jury were to be governed.

But during the trial the appellant was asked whether at. the time he was arrested he had not upon his person some pawn-tickets, which was objected to, the objection overruled and an exception taken.

Q. “ Do you recollect the diamond ring and stud pawned on September 15, 1885, to W. S. Bade!iff, ¡North Sixth Street, Philadelphia, for $100 ?” Objected to; overruled j exception.

This ruling was erroneous. It is true that in Weyman v. The People, Daniels, J., demonstrated that proof of similar transactions to that under investigation was admissible on the question of intent, but they must be so connected as. to time and so similar in their other relations that the same motive might be reasonably imputed to them all. The occurrences which formed the similar transactions were within a very short period of the time when the crime charged was committed.

The testimony objected to, however, related to circumstances which occurred more than three years after the transaction with the complainant herein.

There are several objections to the admissibility of that evidence.

It does not appear that the diamond ring and stud referred to were stolen, and it is not to be presumed that they were. But if by any stretch of the legal imagination the converse could be held, then the circumstance is too remote. It is not within the rule laid down in Weyman v. People.

It is impossible to say that no prejudicial references were drawn from that proof by the jury, if for no other reason than that it was objected to and admitted, an event which must have impressed the jury with its importance. The objection to it was not technical but substantial, and while it may be that the appellant was guilty, it is much more important that he should be tried with strict regard to all the forms of law than that he should be convicted by a, departure from them.

Rules of evidence are of substance and not of form only, and must be applied with all possible accuracy in order that their effect may be justly accomplished. See People v. Baker (96 N. Y. 349 ; 2 N. Y. Crim. Rep. 218).

The judgment should be reversed and new trial ordered.

Van Brunt, Ch.J., and Daniels, J., concur.  