
    PEOPLE v. LESSER.
    
      N. Y. Supreme Court, General Term, First Department;
    
    
      February, 1894.
    
      Flew trials ; criminal- cases.} Where one was found guilty of larceny for stealing a watch upon the uncorroborated testimony of a single witness, the owner, who did not give direct testimony as to the taking, but only as to the circumstances tending to show that defendant had an opportunity to take the watch during the temporary absence of the owner from the room in which she left it, and in which defendant was by her invitation (there being no evidence of flight or that the watch had been found in the defendant's possession); and this evidence was opposed by the accused’s direct denial and evidence of his good character,—held, that the evidence was insufficient to sustain the judgment of conviction, which should, therefore, be reversed and a new trial granted.
    
    Appeal from a judgment of the Court of General .'Sessions convicting the defendant of the crime of grand larceny in the second degree.
    The facts are fully stated in the opinion.
    
      Alexander Rosenthal, for appellant.
    I. It is peculiar to the common law as distinguished from many other systems of jurisprudence, ancient and modern, to permit of convictions on the unsupported evidence of one witness (even though direct) when this is denied by the direct evidence of the accused. ■
    Thus, Beccaria (par. 13), referring to the rule laid down by Blackstone (vol. IV., p. 357), that “ except in cases of treason, at common law, in almost every other case, one positive witness is sufficient," says : “ Reason requires two witnesses, since a witness who asserts and an accused who-denies counterbalance each other, and it requires the testimony of a third party to make a decision possible"' (Beccaria s Dei Delitti e delle Pene).
    
    Again, Montesquieu (book 12, chap, iii): “ Those laws-which condemn a man to death on the deposition of a single witness are fatal to liberty ” (L'Esprit des Lois— Montesquieu); and this at a time when such was the penalty of theft.
    So, also, under that most ancient system of law, the Biblical law, there is abundant authority that to convict a person of crime required convincing proof of guilt which must be furnished by at least two competent witnesses : “ One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth : at the mouth of two witnesses or at the mouth of three witnesses shall the matter be established ” (Deut. xix., 15; see also Matt. xviii., 16; 2 Cor. xiii., 1; 1 Tim. v., 19; Heb. x., 28; John viii., 17. See also, Crim. Jurisprudence of the Ancient Hebrews, Mendelsohn, Balt, 1891).
    The doctrine is extremely -stated in the Danish Code-o'f laws as follows : “For proof are required two witnesses-agreeing in all things on the same point ” (Danish Laws-for the Use of the English Inhabitants of the Danish Settlements in America, Code of Christian V., Chap. xiii., p. 67).
    And fairly set forth under the Russian Code of Laws :: “ One evidence alone is not sufficient When the party accused denies that which a single evidence affirms, truth remains in suspense, and -the right that every one has to-be esteemed innocent will turn the balance in such a case on the side of the accused ” (Tatischeff's Russian Code of Laws, § 189, p. 114).
    The Spanish Law puts it thus: “ Two witnesses of good character, who cannot be rejected for any of the reasons; mentioned in the laws of this Code, are sufficient evidence in any cause” (Las Siete Partidas, Vol. I., p. 207, Law 32).
    The Scandinavian Laws likewise coincide: “ Due testes plene probant iti re, ubi consentiunt Unus testis de ipsa causa, semi plena est, probatio ; et Ule, cui quid imputatur, juramento sese purgabit ” (Codex legum Svecicarum de Actionibus, Chap, xvii., par. 29).
    And so also in numerous other systems of law in use by other civilized nations.
    The text writers who have opposed this doctrine do so ■either on the dogmatic assertion of Blackstone, that the testimony of the accuser is naturally to be believed rather than that of the accused—which would make no account whatever of the presumption of innocence—or else by the •assumption of Starkie (Evidence, Vol. I., LVIII.), that, if true, it would necessitate five witnesses being outs worn by six. But when closely examined this would appear to be a sophistry of the shallowest kind. The conclusion that •such a necessity, in the case put of five witnesses, would be fatal to the administration of justice is doubtless correct, but not as a result of the doctrine mentioned. Such reasoning is a fallacy growing from the application of principles perhaps axiomatically true in mathematics to abstractions to which they are not at all applicable. Testing such reasoning, even by its false mathematical logic, it is difficult to see why the bare affirmation of five witnesses ■on a single point is not exactly counterbalanced by the bare denial of five others. But is it, within human experience, the nature of evidence of numerous witnesses to consist of bare affirmation and denial on a single point? "Where the issue lies between two individuals testifying to an occurrence at which they alone were present, there it is generally narrowed to a single point. But the case put of five witnesses is not at all analogous, so as to permit of reasoning 'from .one to the other. There the very situation of affairs necessitates more than bare affirmation and denial. For if any number of witnesses above one would undertake falsely to convict an innocent man, there must be combination and conspiracy. The witnesses in such case must perforce explain many collateral matters, such as their presence at the scene of" the occurrence, their relations to the party for whom they are testifying, their degree of interest in the subject matter, and must, furthermore, agree upon all the more important details of the charge.
    That in such cases truth may become apparent from the stories given by the accusers themselves, when separated from one another, is the daily experience of the courts, and is as old as the tale of Susannah and the elders. Nay, more, all such false testimony must be given at the imminent peril of severe punishment for perjury. It is, therefore, because an innocent man, wrongfully-accused by a number of witnesses, is protected by such safeguards, and because a concocted scheme is so inherently difficult to maintain by a number of witnesses, that the courts do not require five witnesses to be counterbalanced by six, and not because the contrary practice would be the logical sequence of the doctrine that one witness-who affirms is counterbalanced by one who denies.
    “ Quia a cordato judice mendacia testium deprehendi possunt, si'diver si interrogan-tur; cum contra unus facile sibt constare possit.” Ptiffendorf, 568.
    
    The peculiarity of the case'at bar, however, is that the inculpatory proof does not attain the dignity of being even the direct evidence of a solitary witness. The question is: Conceding the common law rule as given by Blackstone {supra),-to be correct, can the- circumstantial evidence of a solitary witness when contradicted absolutely by the direct evidence of the accused, who is shown to be a person of unimpéached good character, telling a not improbable story, be said to have furnished proof of the accused’s guilt beyond all reasonable doubt ?
    It will not do to answer that of the sufficiency of such-evidence the jury shall judge, for the preliminary question remains : Is it immaterial, in order to entitle the case to-be submitted to the jury, whether the evidence of such sole accuser be direct or circumstantial ?
    ■II. Circumstantial evidence, when coming from a single witness, is not equivalent to direct testimony coming-from such witness (Citing People v. Bodine, i 'Edm. 36 ; 4 Broom & H. Comm. 445 ; x Phillips on Evidence, 704, ;z... 194; 3 Starkie's Evidence, 514).
    
      George G. Battle, for respondent.
    
      
      For note on the value of the testimony of an interested witness, see p. 157 of this volume.
    
   O’Brien, J.

The defendant, a Pole, who at the time of his arrest was twenty-nine years of age, was employed by one Samuel Etreich as a canvasser for crayon pictures. On October 2, 1893, he called at the apartments of complainant, one Mrs. Foster, and endeavored to obtain an order from her for a crayon picture. She stated “ that she did not want anything more to do with picture people, that they were frauds.” Instead, however, of permitting him to go, she continued the conversation about the picture business, and finally invited ' him into the sitting-room to show him some pictures which she had bought from some other firm and for which she claimed she had been charged an excessive price. This was between ten and eleven o’clock in the morning.

She testified that her watch was on the mantelpiece, where she had placed it, after winding it, about fifteen minutes before the defendant came in. ' While he was in the sitting-room she left to go into the dining-room-to get her receipt, to show defendant how she had been, as she claimed, defrauded on the pictures she had previously bought; and after remaining out five or ten minutes she returned with the statement that she could not find the receipt. And then, after some further conversation, in which the defendant urged her to purchase a frame, he left the apartments, after giving her his address. Some five minutes afterwards the complainant claims to have missed the watch, and two days thereafter she caused the defendant’s arrest upon the charge of stealing it.

The complainant said she did not see defendant take the watch, but testified that no other person, between the time when she wound the watch and placed it on the mantelpiece and the time when she missed it, had entered her apartments, and that no other person, therefore, had an opportunity to take it.

The defendant denied that he had seen or taken the watch, or that he knew anything about it; and in addition he produced two witnesses who testified as to his good character.

The jury found a verdict of guilty ; and the sole question presented is, whether u.pon this evidence the motion made on behalf of the defendant, that the court advise the jury to acquit him'upon the ground that the evidence was insufficient, should not have been granted.

Although under certain systems of jurisprudence a conviction could not be had where the testimony of the complainant is directly contradicted and offset by the testimony of a defendant, this rule has never prevailed at common law, which permits a conviction in the face of a denial of guilt by the accused on the testimony of a single witness. Where the testimony is direct, this rule is not likely to work injustice, because there will always arise or be present circumstances which will be corroborative of such witness. Thus, if in this.case the complainant had seen the defendant take the watch, she would naturally have made some outcry, or taken some action which would have brought about the immediate apprehension of the prisoner; and this would result either in showing that, with the consciousness of guilt and to avoid arrest, the defendant fled, or, if he remained, in finding the property-in his possession. In the instance cited, the chances of error or injustice being done or of one being wrongfully-accused would be slight. Where, however, the evidence, as here, is purely circumstantial, depending at best upon an opportunity to take the watch, assuming it was, as stated by complainant, on the mantelpiece, little or no chance is given to one accused of demonstrating his innocence, except as was done in this case by denial of the accusation and by presenting evidence of good character, —which in such a case is entitled to considerable weight.

It may be that the complainant was positive of the time when she last saw the watch, prior to the defendant -entering her apartments, and she may be quite certain about the fact of winding it fifteen minutes before he entered. And still we know that the memory is fallible, and mistakes as to the placing of articles in one place rather than in another, or in assuming with respect to an object we are accustomed to see daily that at a particular time we saw it in a particular place, are not infrequent. That it was possible for the complainant to be mistaken about the placing of articles is shown by the fact of her unsuccessful search for the receipt in the dining-room. As against the circumstantial evidence, therefore, in this -case, we have the fact that the defendant lawfully and upon the invitation of the complainant entered her apartments ; and his conduct therein and his leaving his address when departing are slight facts weighing in his favor. With these in mind, we have, then, the circumstantial evidence of the complainant offset by the positive denial of the defendant, which is supplemented by the proof of two witnesses as to his good character and honesty; and yet without any proof as to her standing or character (which, however, is presumptively all right), the complainant is permitted, on her uncorroborated statement, to-secure the conviction of the defendant.

When we recall the presumption that the law always-indulges in as to the innocence of one accused, the necessity of-establishing the guilt of a prisoner beyond a reasonable doubt, and the force and effect which in a case of this kind should have been given to evidence of good character, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the prisoner upon the ground that the evidence was insufficient. Assuming the defendant was innocent, we fail to see how he could have met the charge in any other way than by the evidence that was presented ; nor are we-able to find a single incriminating ■ circumstance in his manner of entering or leaving the apartments, or in his-subsequent conduct, which corroborates the complainant’s-story. At the time the watch is said to have been stolen, the prisoner was engaged in-honestly earning a living, and prior to the charge made had never been guilty of any crime, and his character for honesty was supported by those by whom he had been employed, one of whom had known him from boyhood. In our opinion it would be destroying the presumption which arises in favor of the innocence of the accused, and permitting the subversion of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to-stand.

It is the province of this court to order a new trial if satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether exceptions shall have been taken or not in the court below (Code Crim. Pro. § 527), and we think that in this case an instance is presented where the danger of mistake and injustice requires that upon testimony so slight and insufficient as was here given to support the charge, the prisoner should have another opportunity to vindicate his innocence, or the complainant to produce some stronger evidence of his guilt.

The judgment, therefore, should be reversed and a new trial ordered.

Van Brunt, P. J., and Parker, J., concurred.  