People v. Myrenberg — 26 N.Y. Crim. 440

Majority

p. 440

SUPREME COURT—APP. DIVISION—FIRST DEPT.

November 17, 1911.

THE PEOPLE v. HERMAN MYRENBERG.

(146 App. Div. 854.)

Headnote

(1.) Children—Corrupting morals of infant by inducing him to steal —Penal Law, § 483.

In order to justify a conviction for a violation of section 483 of the Penal Law in corrupting the morals of an infant under sixteen years of age by inducing him to steal from his employer, the People must establish (1) that the defendant was instrumental in inducing the infant to steal, and (2) that the infant was at the time actually or apparently under the age of sixteen years. iZ.) Same—Pboof as to age.

The fact that such infant was under sixteen yeare of age at the time the defendant induced him to steal may be shown by testimony of himself and his father as to the date of his birth.

(3.) Same.

Moreover, the judgment of the judges of the Court of Special Sessions, who had the advantage of seeing the complainant, as to his age is entitled to weight on appeal, taken in conjunction with direct evidence as to the date of his birth.

(4.) Same—Previous theft by infant no defense.

It is no defense to such prosecution that the infant had once stolen from his employer before he was induced to do so by the defendant.

Appeal by the defendant, Herman Myrenberg, from a judgment of the Court of Special Sessions of the Peace of the city of New York, rendered against the defendant on the 5th day of March, 1910.

Alexander I. Hahn, for the appellant.

Robert S. Johnstone, for the respondent.

This is an appeal from a judgment of the Court of Special Sessions convicting defendant of a violation of section 483 of the Penal Law, which reads as follows:

“ A person who:

“ 1. Willfully causes or permits the life or limb of any child actually or apparently under the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved; or,

“ 2. Willfully causes or permits such child to be placed in such a situation or to engage in such an occupation that its life- or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired,

“ Is guilty of a misdemeanor.”

The particular offense with which defendant was charged was that he had induced a youth named Uffner, who was stock clerk in a lace importing house, to steal laces from his employers. In order to justify a conviction under the statute it was necessary for the People to establish: (1) That defendant was-instrumental in inducing Uffner to steal; and (2) that Uffner was at the time actually or apparently under the age of sixteen years. That the first proposition was sufficiently established admits of little doubt. Not only is Uffner’s testimony on this, point positive, but there are many other circumstances which lend it color and probability. The appellant’s main contention is that the evidence as to Uffner’s age, at the time he is said to-have been induced to steal, is not satisfactory. Both Uffner and his father swore that the former was born November 25, 1893, which would have made him sixteen years of age on November 25, 1909. This evidence was competent, and, in the absence of contradiction, was persuasive. Furthermore, the learned and experienced judges constituting the court by which the defendant was convicted had the advantage of seeing the complainant* and their judgment as to his age is entitled to weight in con june

p. 442

tion with the direct evidence as to the date of birth. We have-mo difficulty, therefore, on the score of the evidence as to Uffner’s age. It is insisted, however, that even if it were satisfactorily established that Uffner became sixteen years of age on November 25, 1909, still the defendant should not have been convicted because the acts charged against him as the gravamen of his offense were committed after that date. On this point considerable evidence was introduced, some of it of a very contradictory character. On the one hand was Uffner’s testimony that defendant ¡began to tempt him to steal in October, and on the other hand, defendant and certain witnesses' called by him put the commencement of the relations between Uffner and defendant at a date after November 25th. In view of the character of this evidence and of defendant’s witnesses we are indisposed to question the finding of the fact by the court below that the course of dealing between Uffner and the defendant began before November 25, 1909. We are informed by the briefs, although it does .not appear in the record, that a certificate of reasonable doubt was given to defendant on the ground that although he might have induced Uffner to steal, yet that he could not thereby cause ITffner’s morals to be depraved since it appears that on at least -one occasion he had stolen lace from his employer before he met defendant. The argument appears to be that because a young man has once fallen into error he is so utterly lost and depraved that he is incapable of falling or being led any lower. To this .argument we are unable to yield, and the defendant himself suggests it with but little apparent conviction. Surely one who discovers a young man entering upon the path of wrongdoing and encourages him to continue upon that path, instead of seeking to turn him aside, is justly charged with depraving his morals.

The judgment of conviction should be affirmed.

Ingraham, P. J., Laughlin, -Clarke and Miller, JJ., concurred.

Judgment affirmed.