
    The People of the State of New York, Respt’s, v. John O’Neill, Appl’t.
    
      (Supreme Court, General Term First Department,
    
    
      Filed January 28, 1889.)
    
    1. Evidence—Testimony of witness intoxicated at the time of occubBENCE.
    Where the statement of the complaining witness, who admits that he was somewhat intoxicated at the time of the occurrence, is of such a confused one as to compel the conclusion that his recollection of the incidents of the crime—a robbery committed upon him—are indistinct, there must be strong corroborative evidence as to the possession by him of the money which he testifies was taken from him, and of the connection of the defendant with the defense.
    3. Same—What not sufficient cobbobobation.
    In such case the mere presence of the defendant at the place of the robbery and the fact that he fled, when he satisfactorily explains such flight, is not sufficient corroboration.
    3. Same—What not sufficient to justify conviction.
    The facts in the present case considered and held not sufficient to justify conviction.
    Appeal by the defendant John O’Neill from a judgment ■of the court of general sessions, entered upon a conviction ■of robbery in the first degree.
    
      Albert Steckler, for app’lt; John R. Fellows, district-attarney; McKenzie Semple, assistant, for the people.
   Brady, J.

The appellant was convicted of robbery in the first degree and sentenced to twelve years imprisonment in the state prison. Upon the trial and after the people had rested, the court was requested' to direct an acquittal, which was declined and an exception taken. The complainant was George Phillips, a resident of Boston who came to New York in pursuit of employment in the middle of February -of this year. He left Boston, at six o’clock on Monday might and arrived on Tuesday morning. He and his fellow passenger, whoever he was, had as he said on the trial a few drinks the first day, by which he means it is supposed Tuesday, and he had more on Wednesday.

It was on the evening of that day that the robbery is alleged to have taken place. He says further that he went to bed on Tuesday night in an uptown hotel, and on Wednesday morning when he got up he started to drink, and kept drinking pretty well all that day, that he was pretty drunk, hut could take care of himself, if people would let him alone. He was set upon in the evening about six o’clock, he says, and a ten dollar gold piece and a five dollar bill taken from him by violence. It appears, however, that he had not counted his money or taken it out, as he said, after-coming from Boston, and it appears on his own evidence, that the last time he had his eyes on his money was in Boston, that a ten dollar gold piece which he said was taken, from him, he had not taken out of his pocket since he left Boston, and the last time he saw the five dollar bill was when he changed a five dollar bill the day previous. It seems-that he had two five dollar bills and changed one, and put-the other in the inside pocket of his vest. That was about eleven o’clock on Tuesday morning, and about twenty-six. hours before the robbery is alleged to have taken place. He-thought that he had possession of the ten dollar gold piece-at the time that he was assaulted, because he felt it occasionally when he put his hand into his pocket, the fob pocket, where he felt the money and key. -It does not appear, however, whether he inserted his hand in the fob pocket or the other pocket of his pantaloons, but he added to that:: “ I cannot fix the time when I last felt that gold piece and key. It was in the morning, the early part of the day.”' He also said: “ I never saw the defendant here before, never-before in my life, not before the following morning/’and. the officer who arrived upon the scene of disturbance about the time of its occurrence, said that he saw the complainant, staggering down Duane street, very much under the influence of liquor, about seven o’clock in the evening, and it appears that the prisoner was searched, having been almost immediately arrested after the alleged assault and robbery, and ten or twelve cents only found upon him. Reestablished by competent evidence a good character

The statement of the complainant is a very much confused one and forces the conclusion that his recollection of the incidents of his assault were indistinct, and therefore that, his testimony was too unreliable without valuable corroboration to justify a conviction. He had not seen, according: to his own confession, the gold piece for two days before-the alleged robbery, but had felt it on the date of that occurrence and at a time when, according to his own con-, fession, he was intoxicated, evidently continuing on that morning a dissipation if not a drunk of the day previous, and enlarging upon it apparently until, as the officer says, “he was very much under the influence of liquor. It maybe said, indeed, that he was grossly intoxicated.” He was evidently not in a condition to identify any one of the men by whom he was assaulted. He had not seen the five-dollar bill for about twenty-six hours prior to the alleged assault, and the only circumstance having any importance-with reference to the guilt of the prisoner in connection with the alleged robbery is that he fled, but he explains that by expressing an apprehension, to use his own language, “that he would get a licking from the policeman,”

A careful and deliberate examination of the evidence has led to the_ conclusion that there should have been corroborative evidence as to the possession of the money which the plaintiff said was taken from him, so as to leave no doubt upon that fact, inasmuch as his drunken state justifies many conjectures as to what might have happened in reference to the money during Wednesday and the night previous to its loss or disapperance,in many ways, especially as he had a companion who was not produced for examination upon the trial.

The charge against the prisoner is grave and the punishment severe, as it ought to have been if the offense charged had been established bv competent and satisfactory evidence, which can rarely be the case when it is given almost exclusively by a man who from a continuous spree was in a superlative state of gross intoxication at the time of the -occurrence detailed.

For these reasons, it is thought that the motion to direct an acquittal should have been granted, and error was committed in refusing to make that disposition of the indictment.

Judgment reversed and new trial ordered.

Van Brunt, P. J., and Macomber, J., concur.  