
    The People of the State of New York, Respondent, v. Michael Rizzo, Appellant.
    Second Department,
    October 21, 1909.
    Crime — receiving stolen goods — trial — charge.
    Where the wife of one indicted for knowingly receiving stolen goods has testified that she purchased the goods with her own money during his absence, it is error to refuse to charge that there can be no conviction if the goods were bought by the wife and were her property.
    Appeal by the defendant, Michael Rizzo, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the clerk of said county on the 15th day of July, 1908, upon the verdict of a jury convicting the defendant of criminally receiving stolen goods.
    
      H. Willard Griffiths, for the appellant.
    
      Franklin A. Coles, District Attorney, for the respondent.
   Hirschberg, P. J.:

The appellant has been convicted of the crime of receiving some chickens, knowing them to have been stolen, the conviction resting chiefly upon the evidence of a witness who testified that he had actually committed the theft but had sold the chickens to the defendant, the latter knowing that they had been stolen. The defendant denied that he had bought the chickens in question and asserted that they had been purchased by his wife during his absence. His wife also testified that she had bought the chickens herself from a pedler during her husband’s absence, and had paid for them with her own money. There was evidence sufficient to justify the conviction, but a new trial is necessary because the court refused to charge the jury at the defendant’s request that if they found from the evidence “ that the goods were bought by Mrs. Rizzo and are her property, the defendant cannot be convicted of the crime charged.” It is true that the refusal of the court to charge the proposition stated was limited except as covered in the charge, but as no allusion was made in the charge to the assertion or claim that the chickens were purchased by the defendant’s wife, the declination must be regarded as absolute.

The judgment of conviction must be reversed and a new trial ordered.

Gaynor, Burr, Rich and Miller, JJ., concurred.

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