People v. Prince — 26 N.Y. Crim. 81

Majority

p. 81

SUPREME COURT—APP. DIVISION—SECOND DEPT.»

March 24, 1911.

THE PEOPLE v. JOSEPH PRINCE et al.

(143 App. Div. 524.)

Headnote

(1.) Trial—Evidence—Robbery—Description of defendants on station: HOUSE BLOTTER.

On the trial of an indictment for robbery in the first degree it is not error to allow a police officer who arrested the defendants to-testify that before he started his investigations the lieutenant at the. station house read to him the description of the defendants given by the person who was robbed and transcribed on the police blotters, especially where the officer did not testify as to what the description was., (2.) Same—Possession of weapons.

Neither was it error to receive in evidence a revolver and blackjack which the defendant on cross-examination admitted had been found in his bureau drawer, and which he admitted were his, there being no request by the defense that the jury be instructed that the possession of the weapons by the defendant was of itself no evidence of the commission of the crime with which he was charged.

Rich, J., and Jenks, P. J., dissented, in part, with opinion.

Reargument of an appeal by the defendants, Joseph Prince •and another, from a judgment of the County Court of Kings, county, entered in the office of the clerk of said county on the 8th day of March, 1909, convicting the defendants of the crime of robbery in the first degree.

Thomas Kelby, for the appellants.

Peter P. Smith, Assistant District Attorney, and John F. Clarke, District Attorney, for the respondent.

The defendants have been convicted of robbery in the first -degree, and base their appeal on two exceptions to rulings made upon the trial. The case was submitted to the jury in a fair and impartial charge, to which no exception was taken, and it •cannot be asserted that their guilt was not conclusively established. The crime was committed at twenty-five minutes after -eleven on the night of February 10, 1909. At that hour they -entered the Twentieth street station of the Brooklyn Union Elevated Railroad Company, Hiss Grace West, the ticket agent, "being there alone in charge. The defendant Jaichetti held a .revolver to the young lady’s forehead while the defendant .Prince stole the money then in the station. A third, person whose .identity has not been established accompanied the two but did not go into the room where Hiss West was, he apparently remaining outside on the watch, and on the completion of the theft all three escaped. The two defendants were arrested on February twelfth. They weré seen by Hiss West at the police-station that night and both were positively identified by her as the culprits. She testified that there was no doubt whatever in her mind that they were the two men who committed the robbery. -She was corroborated as to the identity by another witness, Frank Latinsky, a cabinet maker in Hew York, who •chanced to be at the elevated station on the night of the robbery and saw the men running away. He also was at the police station on the night of the twelfth and testified .positively that they were the same men. He was sure of their identity and felt that .he could not be mistaken.

The defense was mainly a denial of their guilt by the two -defendants, and their conviction should be affirmed unless a new trial is imperatively demanded by one or the other of the exceptions referred to. I see no error in either ruling which requires a reversal. The first relates to testimony elicited from the police officer who caused the arrest of the defendants. He

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was assigned to the case on the day following the robbery and was permitted to testify over the defendant’s objection and exception that before he started his investigation the lieutenant at the station house read to him the description of the men. It is gravely urged that this was giving to him the province of the jury, in the assumption that the description on the police blotter was a description of the two defendants. Hot a word was testified as to what the description was, and the utmost that can be said of it is that such description as Miss West could give of her assailants was taken down at the police station and read to the officer assigned to make the arrest before he started to find the guilty persons. It would have been grossly improper if he had been sent out without first being informed of what the young lady knew in reference to the appearance of the men, and it is difficult to see how the defendants could be prejudiced by the mere fact that whatever description had been made of them was read to or known by the officer.

The second exception relates to the reception in evidence of .a revolver and blackjack which were found'in the bureau drawer of the defendant Prince.by the officers. The fact that they were found was elicited on the cross-examination of Prince. He admitted that they were his and that he had kept them in his bureau drawer, and claimed that they had been given to him by friends whose names he disclosed. There was no request made by the defense that the jury be instructed that the possession of the weapons in the defendant Prince’s home was of itself no evidence of the commission of the crime with which the defendants were charged, and it is unreasonable to suppose that the jury could have been influenced in any degree by the fact of such possession. If it be claimed that there was something discreditable in the possession of the weapons, and that, therefore, the defendants may have been prejudiced thereby, the fact remains that it is not uncommon for persons guilty of henious crimes to have had some slight blemish on their lives prior to the comm"'. -

Dissent

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sion of the offenses, and when they become witnesses in their own behalf the flaw may be disclosed on cross-examination; but it can hardly be said that such a fact warrants the reversal of a conviction which is supported by abundant evidence, and which, does not appear to have been affected in any degree by the criticised disclosure.

The judgment of conviction should be affirmed.

Thomas and Woodward, JJ., concurred; Rich, J., read for . reversal, with whom Jerks, P . J., concurred.

I dissent, upon the ground that when the appellant Prince was on the witness stand he was shown a club and blackjack and required, over the .objection and exception of his counsel, to identify them as his and admit that the officers found them in his bureau drawer. This was error. The articles had nothing to do with the case. There is no evidence that the persons committing the crime had such articles in their possession. 3STo> evidence placed the possession of any weapon in the possession of Prince, and the only weapon claimed to have been used was the revolver in the possession of Jaichetti. It can hardly be said that the admission of the testimony did not work injury to the defendants. This testimony may have been the controlling element in reaching the conclusion that the defendants were guilty of the crime, and the judgment of conviction ought to be reversed.

Jerks, P. J., concurred.

Judgment of conviction of the County Court of Kings county ¡affirmed on reargument.