
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    January, 1907.
    THE PEOPLE v. JOSEPH KLEIN.
    (117 App. Div. 196.)
    Grand Larceny—Second Degree—Aiding in Larceny.
    The defendant was indicted with another for the crime of grand larceny. On the trial it appeared that the defendant did no physical act in consummation of the larceny, which consisted in opening a woman’s purse and talcing money therefrom while she was standing in a crowd. The evidence showed that the defendant and his companion had been conferring together and acting in a suspicious manner and that the defendant closely followed his companion when the latter opened the pocket book. On the whole-evidence, Held, that judgment of conviction should be affirmed.
    McLaughlin, J., dissented, with opinion.
    Appeal by the defendant, Joseph Klein, from a judgment of the Court of General Sessions of the Peace in and for the-county of Hew York, rendered on the 20th day of August, 1906, convicting the said defendant of the crime of grand larceny in. the second degree.
    
      John B. Heinzelman, for the appellant.
    
      Robert S. Johnstone, for the respondent.
   Lambert, J.:

The appellant was indicted with one Abraham Cohen in the-Court of General Sessions, charged with the crime of grand larceny in the second degree. They were both convicted, the-defendant Klein alone appealing. It. is urged on the part of the appellant that the learned court erred in submitting the case against Klein to the jury, and while it must be admitted that the evidence was not as conclusive as might be desired in a case ■of this character, we are of opinion that it was not error to submit the question of guilt, and that the evidence is sufficient to support the judgment of conviction.

The evidence shows that one Antoinette Bally, the complaining witness, was upon one of the public highways of the city on the 16th day of July, 1906, watching a parade to celebrate an Italian holiday. The defendant Cohen approached her, pti't his hand into her purse and extracted a five-dollar bill, and was .arrested by Policeman Bonanno while engaged in the act. ¡Simultaneously the defendant Klein, who was immediately behind the complaining witness, and within two feet of her, was ■arrested by Officer De Cuida. Cohen was convicted, and does not appeal. Officer Bonanno testifies that he was on duty on One Hundred and Fifteenth street, near Second avenue, • with ■Officer De Cuida, when they saw the defendants, Cohen and Klein standing there and acting in a suspicious manner; that these officers watched the two for about ten minutes; that the complaining witness and two or three other women passed .along, and that the witness saw Cohen follow the women, and 11 the big one (Klein) right after him; ” that the officers crossed the street and the witness saw Cohen with his hand in the woman’s bag and grabbed him, the latter dropping a five-dollar bill, which was recognized as belonging to the complaining witness. The defendants had been talking together; were walking in the opposite direction and talking, and Cohen turned to go in the opposite direction and Klein followed him, and was immediately back of and in supporting distance of Cohen when the latter opened the purse and took the money, and while it is true that Cohen denied knowing the defendant Klein, the credibility of his evidence, in view of the conceded facts, was one for the jury. Klein is not shown to have raised his hand or to have done any physical act in consummation of the crime, but he was in a position to do so; his act in following the defendant Cohen, talking with him up to the very moment of the crime, and the fact that he had changed his course apparently for the very purpose of being at hand, in connection with the other circumstances, is sufficient to support the verdict in this case.

We do not find error in the charge; the trial court has a right to discuss, temperately, the conditions which are of common knowledge in relation to the commission of crime, for the purpose of impressing a duty upon the jury, and we are of opinion that the court was well within its discretionary powers in the language used in the charge, to which no exception was taken. It is true, of course, in a criminal case this court is not necessarily limited to the consideration of exceptions, but where there is a mis-statement of the law, and the question goes merely to the discussion of the court, it will rarely avail to overrule a judgment of conviction; certainly not where the -charge is criticised for no other defect than that of calling attention to abuses well known to exist, and which it is the policy of the law to prevent, so far as possible, by the administration of justice.

The judgment should be affirmed.

Ingraham and Houghton, JJ., concurred; Patterson, P. J., concurred in result: McLaughlin, J., dissented.

Me Laughlin, J. (dissenting) :

I dissent. The only evidence in this case to connect the appellant Klein with the crime charged, or by which an intention to participate in the larceny may be shown, is to the effect that Klein was first seen to walk in an easterly direction along One Hundred and Fifteenth street, about twenty feet from the corner, stop and retrace his steps; that he was then accosted by defendant Cohen, and the two talked together for ten minutes; that Antoinette Bally passed, accompanied by two or three other women, pushed on “ one side and the other side ” by the crowd there gathered to witness the Italian festival then in progress; that Cohen followed the woman, with appellant Klein “ right after him; ” that Cohen was seen to put his hand in the woman’s handbag, and, being seized by witness Bonanno, dropped the five-dollar bill; that at this time appellant Klein was two feet back of them in the crowd.

The woman, who testified that she was walking in a “big crowd,” made no charge against defendants, having been unconscious of the attempted theft until the boys were arrested, and it affirmatively appears that Klein was seen to do no act of' participation in the crime.

I am of the opinion that evidence of Klein’s presence in the neighborhood of the scene of the crime, in a crowd, any member of which might have been similarly accused had Cohen been seen to have previously addressed him, following a conversation of another’s seeking, was not sufficient under the circumstances to warrant sending the case to the jury; that to do so permitted the finding of a verdict on a mere conjecture; and that by affirming the'judgment, this court is about to sanction a verdict which has but conjecture and suspicion to sustain it.

I think, therefore, that the judgment should be reversed.

Judgment affirmed. Order filed. 
      
      
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