People v. Weisenberger — 73 A.D. 428

Majority

p. 428

The People of the State of New York, Respondent, v. William Weisenberger, Appellant.

Headnote

Receiving stolen goods—proof of other like transactions proximate intime — request to charge that the jury could not convict unless a witness was believed — when an error will be disregarded.

Upon the trial of an indictment charging the defendant, who was a licensed pawnbroker, with the crime of receiving stolen goods with knowledge that they had been stolen, one Hess, who stole the goods in question, testified that some months before the theft and receipt of the property in question the defendant agreed to purchase any property which he might steal and that he and the defendant had an understanding that if at any time when he came to the pawn shop there should be anybody there that looked suspicious he should say, “ these are the clothes from the cleaners, let me have one dollar and a half.”

After Hess had, without objection, testified to selling stolen property to the defendant on several occasions prior to and including the date of the offense charged in the indictment, the People, over the defendant’s objection, were allowed to show that on several occasions within three weeks thereafter Hess sold stolen goods to the defendant, and that on one of such occasions he thought he saw a detective in the store in citizen’s clothes and went through the form previously agreed upon between him and the defendant in the event of such a contingency.

Held, that the evidence in question being proximate in point of time was competent as tending to establish guilty knowledge on the part of the defendant by showing a series of transactions which took place pursuant to the original corrupt agreement testified to by Hess;

That even if the evidence was incompetent the guilt of the defendant was so clearly and satisfactorily established that the admission thereof did not require a reversal of a judgment of conviction;

That the refusal of the court to instruct the jury that they could not convict the defendant unless they believed the testimony of Hess was true, did not constitute error, as a trial judge is not required to make such a charge with respect to any witness, and for the additional reason that there was sufficient evidence without the testimony of Hess to warrant a conviction of the defendant.

Appeal by the defendant, William Weisenberger, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of the said court on the 11th day of April, 1901, upon the verdict of a jury, convicting him of the crime of receiving stolen goods, knowing the same to have been stolen, under

p. 429

section 550 of the Penal Code, and also from an order entered in said clerk’s office on the 11th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

James W. Ridgway, for the appellant.

Howard S. Gans, for the respondent.

The defendant was indicted under section 550 of the Penal Code for having received stolen property on the 14th day of March, 1900, knowing the same to have been stolen. The property described in the indictment was two pairs of trousers, two coats, one feather boa and one finger ring. It was shown by competent evidence that the property was owned by one Alfred O’Connor whose house one Harry Hess burglarized about three o’clock in the afternoon on the 14th day of March, 1900, taking the property in question which was found in the possession of the defendant, a licensed pawnbroker, by the police, on the 27th day of April, 1900, in searching his pawn shop under a search warrant. This, however, was not sufficient to warrant the conviction of the defendant. The People were also required to show the criminal intent on the part of the defendant in receiving the chattels with knowledge that they were stolen. (People v. Ray, 36 App. Div. 389 ; People v. Schooley, 149 N. Y. 99 .)

Hess, who had committed the burglary, testified on behalf of the People, and his evidence, if sufficiently corroborated under section 399 of the Code of Criminal Procedure, satisfactorily shows this remaining essential fact; and, although it was controverted by the testimony of the defendant, the facts and circumstances are such as to amply support the verdict of the jury. The testimony of Hess is to the effect that in the month of November, 1899, when he started “to do business” with defendant, after having been in defendant’s pawn shop two or three times, he said to defendant, “ I often get this here stuff,” and asked if defendant would “stand” for it, to which he says defendant replied, “Tes, I will stand for anything that comes along no matter what it is; ” that from that time to the fifth of April thereafter he had a series of transactions with the defendant by which he sold to the defendant property which he had stolen consisting of jewelry, silverware and clothing,

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receiving in the aggregate about eight hundred dollars in money therefor; that immediately after burglarizing O’Connor’s house he took the property to defendant’s pawn shop, which was only about a block away, and threw it on the counter, saying: “ Here is some more of the same old graft, Wesy; ” that the defendant gave him fifteen dollars for the clothes and about twelve dollars for the riñe:; that he and the defendant had an understanding that if at any time when he came there was anybody in the pawn shop that “looked suspicious,” he should say, “ these are the clothes from the cleaners, let me have one dollar and a half;” that in the month of January, 1900, when he entered the defendant’s shop with some stolen property, Officer Day came in and the defendant nodded his head “ as much as to go out,” and he went out but saw the detective grab for something; that he came back after the officer left and the defendant told him that the officer wanted to get the “ stuff ” but that lie did not succeed. In this last transaction Hess is substantially corroborated by Officer Day.

Substantially all of the property to which Hess’ testimony relates was found in the defendant’s possession at the time the officer executed the search warrant and identified by the owners who were then present, and it has been shown by their testimony that it was stolen. The defendant’s books did not show the full names and addresses of the pawners or the rate of interest charged as required by law. In testifying in his own behalf the defendant attempted to explain that this omission was to avoid his being imposed upon by people claiming to have lost their pawn tickets. The coats were entered in the defendant’s pawn book as having been pawned by “ Williams” on March fourteenth with other property identified as O’Connor’s but not included in the indictment; and the trousers were entered as pawned on the same day by “ Rogers.” The pawn book also showed a cape and bag which were stolen from O’Connor as pledged on March fifteenth under the name of “O’Neil.” The boa was found in a box in which was a muff with a ticket showing a pawn number and marked “ Potter,” and the pawn book showed that pawn number as property pledged on the nineteenth of April. The pawn book was in defendant’s handwriting and he gave no explanation of the manner in which or from whom he obtained the property, except that he denied ever having seen or had any trans

p. 431

actions with Hess. He testified that he was familiar with the law requiring pawnbrokers to keep the names and addresses of the pledgors together with the amount of the loan and rate of interest, and that it was unlawful for a pawnbroker to purchase second-hand property offered to him as a pledge or pawn, orto engage in secondhand business; and knew that it was the practice to give the pawner a pawn ticket and to attach a coupon with the address of the pawner to the pledge, and in case of stolen property where the thief was not found or convicted he knew it was the practice of pawnbrokers to retain the pledged property unless repaid what he advanced thereon.

The ring was found in a tray wfitli thirty other rings in the show window where rings were placed for sale, and no tag showing the selling price or pawn ticket was attached to it, nor was any record thereof found on the defendant’s books. Prior to the fourteenth of March a ring and some silver which had been stolen from Mrs. Holzwaser, and which Hess testified that he stole and sold to the defendant, were discovered in defendant’s show window and he refused to let the owner see them, and subsequently claimed that he had bought them from a dealer, but, after an unsuccessful attempt to get the owner to pay what he gave for them, he surrendered them without pay. Some property stolen from Mrs. Stryker on January 8, 1900, and entered on the defendant’s books as pawned on the same day under the name of “ Sullivan,” was discovered four days later and identified by the owner who also identified Hess as the burglar, and Hess testified that he had stolen and sold it to the defendant. The defendant claimed that this property had been pledged for twenty-five dollars, which he demanded as a condition of giving it up, but upon being taken before a magistrate, he surrendered • it all prior to the fourteenth of March, except a watch which had disappeared after being discovered in his possession ; but before surrendering it, and while refusing to surrender because the thief was not captured, when told by an officer that the thief would be found and convicted, the defendant said, “You will never get him,” and upon the officer asking, “Do you know him?” the defendant replied, “ Yes.” Hess’ father testified that in an inter, view which he had with the defendant subsequent to the arrest of Hess, he asked the defendant, “ Do you know that you have put a

p. 432

boy in trouble % ” and the defendant said, “ He knows of that fact,” and the witness asked him to give up the property which he had bought from the school teacher, to which the defendant replied that he did not buy it from the school teacher, but of Hess, and that he was not “ going to give u]3 any more; that he did give up all he ■could ; ” and when asked if he would do something toward getting ■a lawyer for Hess the defendant said he had done all he could do; that he “ has given up some stuff already before.” There is no ■other evidence tending to show the defendant’s guilty knowledge, ■and there is much in his own testimony inconsistent with the testimony of the People’s witnesses upon other points indicating a con■•sciousness of guilty knowledge.

This brief review of the evidence shows, we think, beyond even a doubt, that the testimony of Hess is sufficiently corroborated to warrant the conviction of the defendant thereon. (People v. Mayhew, 150 N. Y. 346 ; People v. Elliott, 106 id. 292 ; People v. Ogle, 4 N. Y. Cr. Rep. 349 ; S. C., 104 N. Y. 511 ; People v. Rivello, 39 App. Div. 454 .)

After Hess had testified to selling stolen property to the defendant on the 17th and 29th of November and 20th of December, 1899, and on the 8th, 13th, 18th and 29th of January, 28th of February, and 14th and 19th of March, 1900, without objection, the People were allowed to show, under the defendant’s objection and exception on the ground that it was after the date of the offense charged in the indictment, that Hess sold jewelry to the defendant on March twenty-second, silverware and jewelry on March twenty-eighth and jewelry on April 5, 1900, and a conversation at the time of the transaction on March twenty-second when Hess claimed to have seen a detective in the store in citizen’s clothes, and to have gone through the form previously agreed upon between him and defendant in the event of such a contingency. This evidence was competent. It was sufficiently proximate in time and tended to show guilty knowledge on the part of the defendant, as it showed a -series of transactions commencing with the corrupt agreement between Hess and the defendant by which the latter was to buy any property stolen and brought to him by Hess, and that they were connected because it appears that the plan of procedure originally agreed upon in case of the presence of a detective or police officer

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was carried out, and gives rise to the inference that it was their understanding that all of these transactions were pursuant to the original arrangement. (Mayer v. People, 80 N. Y. 364 , 373 ; People v. Grossman, 168 id. 47; People v. McClure, 148 id. 95.)

Furthermore, all of this property was found in the defendant’s possession at the time the O’Connor property was found and was identified by the owners. It was all in court, identified and testified to and introduced in evidence, without objection or exception. In any event the evidence was merely cumulative and of no different nature or effect than that concerning the numerous prior transactions. We think that the guilt of the defendant was so clearly and satisfactorily established that the reception of this evidence, even if incompetent, does not require a reversal of the conviction.

The defendant’s counsel requested the court to instruct the jury that they could not convict the defendant unless they believed that the testimony of Hess was true. This the court declined to charge, and the defendant excepted. We think the exception is not well taken. Ho question was raised but that the evidence required the submission of the case to the jury. We do not understand that either in a civil or criminal case the court is required to analyze and separate the evidence and say to the jury that unless they believed the testimony of a certain witness or witnesses they must render a verdict in a particular way. That is not the province of the court, and, if it were the rule, would unduly protract the trial of causes, and make it very difficult to sustain any verdict. If counsel may single out the testimony of a particular witness and ask for such instruction, they may group witnesses or recite testimony and ask for such instructions.

The duty of the court in this regard is discharged by a general charge instructing the jury what facts it is essential that they should find in order to justify them in rendering a verdict in a particular way. (People v. Tuczkewitz, 149 N. Y. 240 , 253.) Moreover, the request was misleading. The jury might infer from that and the subsequent request, to the effect that if they had any reasonable doubt arising from the testimony of Hess as to its truth it was their duty to acquit, that the request was aimed at the credibility of Hess.

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The testimony given by Hess was to be weighed in the light of the corroborating evidence and all the testimony in the case. Furthermore, this was a request for an instruction absolute that as matter of law the other evidence in the case would not warrant a conviction. We think there was sufficient evidence without the testimony of Hess to fairly justify the inference that the defendant knew at the time he received this property that it was stolen, and, consequently, if the request were otherwise proper, it would have been error to have granted it.

The judgment should, therefore, be affirmed.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed.

Cases cited

People v. Schooley 149 N. Y. 99 N.Y. 1896-04-07 p. 429
People v. Mathew 150 N. Y. 346 N.Y. 1896-10-13 p. 432
People v. Ogle 104 N. Y. 511 N.Y. 1887-03-01 p. 432
People v. Rivello 39 App. Div. 454 N.Y. App. Div. 1899-04-07 p. 432
Mayer v. People 80 N. Y. 364 N.Y. 1880-03-19 at 373 p. 433
People v. Tuczkewitz 149 N. Y. 240 N.Y. 1896-04-14 at 253 p. 433