
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    June 28, 1907.
    THE PEOPLE v. BARNET ROSENBERG.
    (120 App. Div. 334.)
    Burglary—Third Degree.
    Evidence considered and held to be insufficient to sustain a judgment of conviction for burglary in the third degree.
    Appeal by the defendant, Barnet Rosenberg, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 19th day of November, 1906, convicting him of the crime of burglary in the third degree.
    
      Aaron J. Levy, for the appellant.
    
      E. Crosby Kindleberger, for the respondent.
   Laughlih, J.:

The defendant was jointly indicted with Hyman Hillowitz, Frank Smith and John Nolan on three counts, (1) for burglary in the third degree, for breaking into and entering the tailoring shop of Samuel Zwang with intent to steal, take and carry away property, and (2) for grand larceny in the second degree for stealing from the same premises three coats of the value of fifteen dollars each, two other coats of the value of twelve dollars each, six pairs of trousers of the value of seven dollars each pair, and two skirts of the value of twelve dollars each, and (3) for criminally receiving stolen property in receiving and having the property described in the second count, knowing the same to have been stolen.

Defendant Smith pleaded guilty. The appellant and Hillowitz were tried together and both convicted. The learned counsel for the People informed us on the argument and states in his brief that Holán, the other defendant who demanded a separate trial, was convicted four days after the conviction of the appellant.

We are of opinion that there is grave doubt as to whether the appellant is guilty of the crime for which he has been convicted and that he should have a new trial. It was shown that he previously bore a good character, and was employed regularly as a traveling salesman and bookkeeper at fifteen dollars per week by the firm of M. Rosenberg & Son at Ho. 14 Cooper Square, composed of his father and brother. There is no direct evidence connecting him with the burglary. His room was searched by the officers, without a warrant and wholly on suspicion, because he happened to be living in a boarding house where two of the other defendants were found in possession of part of the stolen property. According to the testimony of the two officers who made the arrest two pairs of the stolen trousers were found on a chair in his room and he admitted that they belonged to him. His conviction is based entirely on this alleged admission and on evidence tending to identify the trousers as part of the property that was stolen. Testifying in his own behalf, he denied having made the admission to the officers and denied knowledge that the trousers were found in his room, and says that the first announcement made by the officer who awoke him was to place him under arrest without stating the cause or searching the room. A pawn check for an overcoat, being part of the stolen property, was found in a drawer in his room after he had been arrested and taken to the station house but he was not asked about the pawn check and there is no evidence that he pawned the coat or had possession of the pawn check, and no attempt appears to have been made to have him identified by the pawnbroker, or to show who pawned the coat. One of the two officers who testified that appellant admitted ownership of the trousers, would not deny that he had said to appellant, after the arrest, that there was no evidence against him. It appears that Smith, who pleaded guilty, and Nolan, who was subsequently convicted, protested to the officers that the appellant had no connection with the crime. If the pawn check and two pair of trousers were found in his room, it may be'that the other defendant, with a view to secreting the property, placed them there without the knowledge of appellant and while he was asleep. The evidence shows that an overcoat stolen at the same time was found in his room, and that he made no claim thereto. It appears that appellant was fully dressed and lying on his bed asleep when the officers entered his room, between ten and eleven o’clock a. m.,. the morning the burglary was committed. He testified that he drank to excess the night before and did not arrive at his room until about one-thirty a. m. The premises burglarized were No. 121 East One Hundred and Twenty-third street. At about three-ten a. m., October twenty-fifth, Officer Teeven, who resided opposite the store which was burglarized, while on his way from the police station down Lexington avenue toward his home, without knowing that the store had been burglarized, saw the defendants, Smith and Hillowitz coming up Lexington avenue on the opposite side from toward Park avenue and One Hundred and Twenty-third street, each carrying clothes on or under his arm, and “ gave them chase ” but was unable to capture them. On resuming his journey home, he found the front door of the store open and discovered that the lock had been broken or forced open. He knew that the defendant Smith resided at No. 2094 Lexington avenue, opposite the police station, and when he and Officer Gammer returned to the police station after arraigning their prisoners that morning, they concluded to watch No. 2094 Lexington avenue, where Smith lived, which was a furnished rooms house. They soon observed defendant Hillowitz and Nolan leave the building, each with a parcel, and go up Third avenue. They followed and arrested them as they were approaching a pawn shop near One Hundred and- Twenty-eighth street. Each prisoner had some of the stolen property; and a pawn check for a stolen overcoat was found on Hillowitz. After taking their prisoners to the station house, they returned and entered Ho. 2094 Lexington avenue. They entered the appellant’s room, which was the front parlor on the ground floor, and Officer Teeven placed him under arrest and Officer Gammer went upstairs and arrested Smith while in the act of throwing some of the stolen property from the roof. They also arrested one Wernstein found in the building. Officer Teeven recognized Holán as the man whom he saw with Smith and chased in the early morning. The officers entered the building with a view to arresting Smith, and it is quite probable that they concluded to arrest on suspicion all men found there. The police officers had it in their power to clear up the doubt concerning the appellant’s guilt by ascertaining who pawned the overcoat and obtained the pawn check that was found in appellant’s room. If he did not pawn the overcoat it is highly probable that whoever put the pawn check in the drawer in his room also placed the overcoat and trousers there, if they in fact were found there.

The learned court at first submitted to the jury the first and third counts of the indictment, but before concluding the charge, decided to submit only the first count, charging burglary in the third degree. The jury subsequently came into court and reported that they were “ unable to agree on a verdict on the indictment of burglary in the third degree,” and requested that the court define burglary in the third degree. The court complied with the request and instructed the jury that if some of the stolen property was found in the possession of the defendants and they did not give a satisfactory explanation of their possession, they might find that the defendants committed the burglary. Questions propounded to the court by some of the jurors indicate that they thought that the evidence was sufficient to show that the defendants were in possession of the stolen property with guilty knowledge, but insufficient to show that they actually committed the burglary or aided and abetted in its commission. The court again instructed them that they must find defendants guilty of burglary in the third degree or acquit. This indication of a division of opinion and doubt on the part of the jurors emphasizes the weakness of the evidence against the appellant upon which we have commented.

It follows that the judgment of conviction should be reversed and a new trial ordered.

Ingraham, McLaughlin, Clarke and Scott, JJ., • concurred.

Judgment reversed and new trial ordered.  