
    The People of the State of New York, Respondent, v. William A. Faulhaber, Indicted as William Faulhaber, Appellant.
    First Department,
    July 11, 1912.
    Evidence — grand larceny—res inter alios acta.
    In a criminal prosecution for grand larceny it is error to allow the People to show that the defendant on prior occasions exhibited other articles which he admitted that he had stolen.
    So, too, it is error to allow a police officer to state that on the night of the robbery he visited the defendant’s home and informed his mother that, a certain person had accused him and another of the theft, and that upon another occasion he inquired of the mother whether she had heard from her son, and that she replied that she had not and that he must be dead.
    Ingraham, P. J., dissented.
    Appeal by the defendant, William A. Faulhaber, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 31st day of March, 1910, convicting him of the crime of grand larceny in the second degree and sentencing him to the Elmira Reformatory.
    
      Samuel Wechsler, for the appellant.
    
      Robert S. Johnstone, for the respondent.
   Miller, J.:

It is undisputed that Mamie Howe, a young woman about .twenty years of age, stole a bag of jewelry from her aunt. She claimed that she was persuaded to do so by the defendant and another boy by the name of Garrison, and that, after the theft, the defendant took the bag from her and went away with it. The jewelry was never recovered. The defendant was arrested several months later. Mamie Howe and Garrison were living at the time with a man and woman who went by the name of Mr. and Mrs. De la Mater. The evidence against the defendant consisted of the aforesaid testimony of Mamie Howe, testimony of Mrs. De la Mater to the effect that on the night of the theft the defendant exhibited to her the bag of jewelry and informed her that Mamie had taken it from her aunt, the testimony of Mr. De la Mater to the effect that the defendant afterwards told him how he and Garrison, disposed of the jewelry and spent the money, and the testimony of police officers, tending to show that the defendant kept himself concealed for two or three months after the theft. The defendant denied that he was in any way involved in the crime.

The People’s evidence, apart from the testimony of the police officers, consisted of the testimony of witnesses of at leastdoubtful character. There are some circumstances slightly suggesting that the De la Maters and Mamie Howe wanted to implicate the defendant in order to screen Garrison. Mamie was arrested directly after the theft, and there is evidence indicating that she at first implicated. Garrison but said nothing about the defendant.

Of course there is ample evidence to sustain the verdict. But the defendant denied the theft, and there is more than a possibility that, although not guilty, he is in his present, predicament because of evil association. He seems, to have been a chum of Garrison’s. We should not disturb the judgment of conviction unless satisfied that the defendant has not had what the law accords him, a fair trial. • Two or three examples of grossly improper rulings on the admission of evidence will suffice. The witness Kate De la Mater was allowed, over the. persistent objections of the defendant, to state that on two prior occasions the defendant exhibited to her articles which he admitted stealing. She said that on one occasion he showed her a watch and money, which he said he got “off a fellow who was asleep in a back room of a saloon.” The court, upon the answer being given, struck out the words “ who was asleep in a back room,” and instructed the jury that there was no presumption of crime in the defendant’s having the watch and money. The witness said that on another occasion the defendant showed her some rugs, which he said he got off the railing from a store around the corner. The court struck out a part of that answer, although it was responsive, and instructed the jury that there was no presumption “of' improper acquirement of the property on the defendant’s part.” Officer Kelly of the detective bureau was allowed to state that on the night of the robbery he visited the defendant’s home and informed his mother that Mamie Howe accused both her son and Garrison of taking the bag of jewelry, and that upon another occasion, upon his inquiring of her whether she had heard from her son, she replied that she had not, began to cry, and said that he must be dead. After the jury had been out some time they were brought into court and stated that they had not yet agreed. They were again sent out with some further instructions,' and later were brought back and, at their request, the testimony of Officer Kelly was read to them. They then retired and, upon again being brought into court, rendered a verdict of guilty, with a recommendation for mercy. It thus quite plainly appears that the evidence, erroneously admitted, actually did prejudice the defendant’s case.- Of course it is unnecessary to discuss the question whether the said rulings were erroneous. They are so plainly so that we are at a loss to understand why the trial counsel persisted in asking the questions, or on what theory the court allowed them.

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

McLaughlin, Scott and Dowling, JJ., concurred; Ingraham, P. J., dissented.

Judgment reversed and new trial ordered., Order to be settled on notice.  