
    SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,
    June, 1907.
    THE PEOPLE v. PATRICK RYAN.
    (120 App. Div. 275.)
    (1) . GtRand Larceny—First Degree.
    Evidence on the trial of an indictment for grand larceny in the first degree in attempting to steal a scarf pin considered and held not to warrant a conviction.
    (2) . Same—Trial—Erroneous Charge.
    Where the defendant has not taken the stand in his own behalf, it is prejudicial error for the court to point out that although Ms refusal to testify does not create a presumption against him, it protects Mm from all forms of cross-examination.
    Appeal by the defendant, Patrick Ryan, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 9th day of November, 1906, convicting him of the crime of an attempted grand larceny in the first degree as a second offense, and also from an order entered on the 9th day of November, 1906, denying his motion for a new trial.
    
      Henry Hardwicke, for the appellant.
    
      Alexander A. Mayper for the respondent.
   Scott, J.:

The defendant was indicted, tried and convicted of the crime of grand larceny in the first degree, as a second offense. The offense upon which the charge was based was the attempt to steal a pin from the cravat of one Degen, the complaining witness. The evidence on the part of the prosecution was that Degen and one Stein boarded a very crowded Twenty-third street car at Eighth avenue on Saturday, March 24, 1906, between half-past seven and eight o’clock in the evening; that they intended going east as far as Sixth avenue; that Stein managed to get a few feet inside the door, but Degen was obliged to stand on the rear platform, the defendant standing in the doorway. Stein says that he saw Ryan with his hand on Degen’s pin, which, however, he did not succeed in taking. Stein called out to Degen to look out that the man was trying to get his pin. The defendant denied it whereupon Degen hit him. Defendant ducked and jumped off the car, Degen following him. A chase ensued, during which defendant threw off his overcoat and dropped his hat, both of which Degen picked up, The defendant escaped. The defendant was arrested on the following Tuesday. The defendant was identified by both Degen and Stein as the man who had been on the car and had jumped off, and a police sergeant professed to be able to identify his hat, because he had seen him wear it twice a week since January when he had been arrested for being on the cars. The defense was an alibi, supported in part by the testimony of the prisoner’s wife. If there were nothing else in the case we should be disposed to affirm the conviction, although the identification of the prisoner left much to be desired. ¡Neither Stein nor Degen had ever seen the man before the evening of the alleged attempt and it is manifest that they had then but slight opportunity to get his features well fixed in their minds. The identification by the hat is, of course, very unsatisfactory, since it is not shown to have been of unusual appearance. We find it, however, difficult to'reconcile the man’s presence on the car at the time the attempted larceny occurred with other evidence in the case. According to the principal witnesses for the prosecution they boarded the car between half-past seven and eight o’clock and the attempt occurred almost immediately afterwards. It must have been, therefore, certainly not later than eight o’clock. It was shown by an apparently disinterested witness, a clerk or salesman in a large and well-known shop on Eighth avenue and Thirty-fifth and Thirty-sixth streets, that the defendant was in that shop with his wife at eight o’clock on the evening in question, and had been there for a quarter of an hour. There was nothing to impeach or throw doubt on this witness’ testimony, and he fixed both the day on which the defendant was in the shop, and the fact that he was there until eight o’clock, by circumstances which contributed veri-similitude to his story. If this testimony was true the defendant could not have attempted the theft after he left the store because the complaining witnesses fix the time as being before eight o’clock. It seems improbable that he could have attempted the theft before he went to the store because he then had on an overcoat and hat, and yet the man who had been chased by Degen had thrown away his overcoat and lost his hat, and it seems improbable that he should have had time to replace these articles. It was conceded that the defendant had previously been convicted of grand larceny in the second degree and sentenced to the penitentiary for a term of six months, and it was shown by the cross-examination of his wife that his character had been bad, and he did not take the stand on his own behalf.

Upon the whole case we are disposed to think that the evidence did not justify the verdict. The result arrived at was, as we consider, probably induced in part by the man’s previous bad character and in part by an erroneous charge, to which no exception seems to have been taken. As has been said the defendant did not take the stand on his own behalf, yet the learned judge incorporated this sentence into his charge: The law says that a person charged with the crime is a competent witness in his own behalf. A defendant need not take the witness stand, and his neglect or refusal to testify does not create any presumption against him; but when a defendant takes the stand in his own behalf he is and can be subjected to all the forms of cross-examination, as could any other witness in the case.” This statement undoubtedly states the law accurately, but there was no occasion to instruct the jury in this particular, because the defendant had not been sworn as a witness, and, therefore, no question of his cross-examination had been presented. The Code of Criminal Procedure (§ 393) provides that a defendant is not to be prejudiced by his failure to testify in his own behalf, and it must tend to produce some prejudice if attention be called by the court to the fact that he had not testified. The safe rule, as we consider, would be not to refer to the fact at all unless a request is made by the defendant. But to add to the statement that he is not to be prejudiced because he has not testified, a suggestion as to the possible scope of his cross-examination if he had testified, is to suggest to the jury that he refrained from taking the stand because he feared to subject himself to cross examination. We consider that, under the circumstances of this case, that portion of the charge which we have quoted tended greatly to the defendant’s disadvantage, and contributed in some degree to the verdict, and, if excepted to, would have constituted a clear legal error. (People v. Fitzgerald, 156 N. Y. 253, 265, 13 N. Y. Crim. 36.

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

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed and new trial ordered.  