
    SUPREME COURT—APP. DIVISION—FOURTH DEP.,
    March, 20 1907.
    THE PEOPLE v. JOHN SMILIE.
    (118 App. Div. 611.)
    (1). Grand Larceny—Second Degree—Evidence.
    On the trial of an indictment for grand larceny in the second degree in stealing the plaintiff’s money during a game of dice, it is error to admit in evidence “phony rolls” (rolls of paper surrounded by a genuine bill to simulate a roll of money) found in the defendant’s possession three months after the alleged larceny.
    (3). Same.
    An objection to evidence connecting the “phony rolls” with the defendants sufficiently apprises the trial court that the objection will be taken to the rolls and it cannot subsequently be maintained that ho objection was taken.
    (3). Same.
    Cross-examination by district attorney criticized.
    Appeal by the defendants, John Smilie and others, from a judgment of the County Court of Erie county, rendered on the 6th day of July, 1906, convicting the defendants of the crime of grand larceny in the second degree.
    
      Rowland B. Mahany, for the appellants.
    
      Daniel V. Murphy, Assistant District Attorney, and Franlc A. Abbott, District Attorney, for the respondent.
   Spring, J.:

Webb was the only witness on behalf of the People of the commission of the alleged crime. He testified that while waiting for a train in the Erie railroad station in the city of Buffalo he was asked by the defendant Davis to go with him for a cup of coffee. They went together to a saloon, where they met the defendant Smilie. Davis produced a five-dol'lar bill and Smilie produced one of ten dollars to pay for the drinks which they had ordered, and the woman tending bar was unable to change either bill. In order to settle the question of payment among themselves, Davis and Smilie threw dice, Davis winning. Smilie stepped away from the bar and Davis induced Webb to participate in throwing dice upon the pretext that they would “ have some fun ” with Smilie, paying him back his money. Webb thereupon took from his pockets bills aggregating one hundred and thirty-nine dollars, and the men threw dice, Davis producing fifteen dollars. A jangle ensued and in the fracas Webb’s money was taken from him.

Two witnesses, Gallagher and Mrs. Petzing, who was the woman tending bar, testified that the defendants were not the persons in the saloon with Webb, and the defendants also denied that they were there.

The alleged crime was committed on the 8th of March, 1906. The defendants were arrested three months later. Their trunks were searched and two packages resembling money, characterized as “ phony rolls,” were found in the trunks. These rolls were exhibited to the jury and received in evidence, and I think their reception was error and very prejudicial to the defendants. It is claimed that there was no objection taken to their reception. When the police detective was first testifying he stated that he searched the trunks in rooms occupied by the defendants, or some of them, and proceeded to disclose their contents, when the defendants’ counsel objected, stating that there was no connection between these rolls and the commission of the crime charged three months earlier. The witness then stated that he found two rolls, and when it was attempted to prove where they were found, the defendants’ counsel objected, and the objection was sustained. The witness testified in that connection that he found a card case containing a card and he sought to show what name was on the card, and objection was interposed, the counsel saying that it was not in evidence, and he objected to it when “ offered in evidence upon the same ground as the former objection.” The district attorney thereupon replied that he “ would like to have the Court examine those and I am going to offer them,” and the court suggested “ you had better wait until you make your proof in regard to their occupying the room,” and the district attorney adopted the suggestion of the court.

This colloquy indicated quite clearly that the district attorney intended to offer in evidence , those rolls and the other articles, and also it was obvious that the counsel for the defendants expected to resist their reception.

Evidence was then given on behalf of the People tending to show that the trunks belonged to the defendants or some of them. The detective was then recalled and testified to unlocking the trunks and finding the two rolls which he held in his hand. Objection was then interposed by the defendants’ counsel, and he said to the court that he would like to state his grounds and the court assented. The counsel stated his objections as follows: “ That it has not been shown by any testimony offered thus far that it was necessary or that any of these rolls were used in the commission of the crime, and they have no more right to offer them than that a gun was found in their trunk. It is most unfair to these defendants to exhibit these to the jury and say that these men are crooked. It is not any evidence to show that this crime was committed there. Robbery is the charge, and if they found anything that was used there, then it might be proper testimony.” The court overruled the objection and exception was taken, and the rolls were -received in evidence without any other offer.

It is quite clear that the counsel for the defendants interposed his objection in anticipation of the offer of these rolls. The court so construed it and allowed him to state his objection upon that hypothesis. He was not stating grounds applicable to the place where these rolls were found, but to their admissibility. Both the court and the counsel understood that the introduction of these rolls would be objected to, and when counsel stated at length the grounds of his objection the court realized to what they related and over-ruled his objection and received the rolls without any distinct offer of them. The office of an objection is primarily to apprise the trial judge that the counsel objecting seeks to exclude the evidence offered, and also the grounds upon which he asks for a ruling in his favor. These objects were fully satisfied by the procedure referred to. It was obvious that the district attorney was proving a series of connected preliminary facts with a view to the offer of these rolls. The counsel made his objection to the preliminary question and the court permitted him to state his objections in detail, not to the antecedent question, but to the rolls themselves; and then without further preliminaries received them after overruling the objection to which the exception was taken. We think the objections were timely and apprised the court sufficiently of the precise point to which they applied. (Church v. Howard, 79 N. Y. 415, 419; Matter of Eysaman, 113 id. 62, 71.)

The rolls were not competent evidence. They were found in the trunk more than three months after the alleged offense for which the defendants were -indicted. There was no possible connection between the rolls in the trunk, whether there for a good or bad motive, and the claimed larceny. Webb testified that at the time his money was taken from him Smilie had a roll, perhaps of money, but gave no explanation of its contents or appearance. There was nothing to indicate that it contained spurious currency. The rolls received in evidence were chiefly composed of paper covered with a genuine bill, and the term phony rolls ” signified a° package of that description. In order to make such evidence admissible it must bear upon the offense charged.

The rolls in the trunk in June did not tend to show that the defendants stole money from Webb in March previous. The evidence was of the most damaging character. The jury very likely reached the conclusion that the roll Smilie had in the saloon was identical with one of those found in the trunk, although there was an utter absence of proof of their identity or similarity. The district attorney was enabled to exhibit these rolls before the jury and charge defendants with the commission of the crime alleged because these rolls were in the trunks, although they may have been there for no dishonest purpose.

As was stated in People v. Altman (147 N. Y. 473, 477, 11 N. Y. Crim. 449) : “ It is impossible to say that the defendant was not prejudiced by these papers admitted against his objection. The rule that an error committed upon a trial may be overlooked when the party complaining was not prejudiced thereby is only applicable in cases where the error could by no possibility have produced injury.”

On the cross-examination of Smilie the following occurred: Q. When you were arrested "there was a man with the officer by the name of King? A. He said his name was Williams. He was not with the officer when I was arrested and he told me and the officer that his name was Williams. Q. He is the man who is referred to as the Englishman? A. Who has referred to him? I haven’t. Q. You were accused by that man? By Mr. McIntyre: I object to that as manifestly unfair on the part of the District Attorney, and he knows it. Objection sustained. Q. Weren’t you identified by him as one of the three men who got his money at Niagara Falls? By Mr. McIntyre: I object to that. The Oourt: No, no, Mr. Murphy, that is the same line of questions to which the court sustained counsel’s objections.”

The manifest purpose of this examination was to create the impression in the minds of the jurors that Smilie had stolen money from King, and the offense charged in the indictment was stealing money. This conduct was improper and the vice of the testimony was not cured by excluding the evidence. (Manigold v. Black River Traction Co., 81 App. Div. 381.)

And the most vicious part of the examination was in the question put by the district attorney after the court had indicated clearly that this line of testimony was improper. The testimony of Webb, with his participation in the dice throwing, was not of the strongest probative force, and the defendants were entitled to a fair trial for the precise offense charged in the indictment.

The judgment should be reversed.

All concurred, except Robsoh, J., who dissented.

Judgment of conviction reversed and a new trial ordered.  