People v. O'Neil — 6 N.Y. Crim. 226

Majority

p. 226

Supreme Court-General Term-first Department.

January, 1889.

PEOPLE v. O’NEIL.

Headnote

Evidence.—Witness Intoxicated at Time oe Occurrence Should be Corroborated.

Where the statement of the complaining witness, who admits that he was somewhat intoxicated at the time of the occurrence, is such a confused one as to compel the conclusion that his recollection of the incidents of the crime,—e. g., a robbery, committed upon him,—are indistinct, there mustbe strong corroborative evidence as to the possession by him of the money which he tes

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tifies was taken from him, and of the connection of the defendant with the offense.

In such ease, the mere presence of. defendant at the place of the robbery, and the fact that he fled, when he satisfactorily explains such flight, is not sufficient corroboration.

The facts in the present case considered, and held not sufficient to justify conviction.

Appeal by the defendant, John O’Neil, from a judgment of the Court of General Sessions, Hon. R. B. Maetuíe, presiding, of March 28, 1888, entered upon a conviction of robbery in the first degree.

The charge of the indictment was that the crime was committed in the night-time, and that the defendant was aided therein by three accomplices actually present.

Upon the trial, the people gave evidence tending to show that on November 29, 1887, the complainant, one George Phillips, an iron-moulder by trade, and resident of the City of Boston, in the State of Massachusetts, was walking after dark along Duane street, in the City of New York, in a state of intoxication, and was then and there set upon and attacked by four men, some of whom pinioned his arms and held him fast while the others tore open his coat and waistcoat, and rifled his pockets of all of their contents, including a tendel lar gold piece at the time in the fob pocket of his trousers, and a five-dollar bill in the inside pocket of his waistcoat, and a hotel check for his valise; that a police officer, seeing from a distance the four men surrounding the complainant, and suspecting foul play, ran to the scene, and that thereupon the four men, seeing the approach of the officer, took to flight, each fleeing in a different direction ; that the officer pursued the defendant, at the same time rapping for assistance, and in this pursuit the defendant was always in sight except for a moment or two while turning corners; that-finally defendant was stopped in his flight and arrested by another officer whose attention had been attracted by the signals of the pursuing officer; that the defendant was thereupon delivered to the officer who

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had pursued him, and was by him recognized as the man he-had thus pursued (see testimony of Joseph P. Hay).

John R. Fellows, district-attorney (McKenzie Semple, assistant), - for the people, respondents.

The evidence was sufficient to justify submission of the-case upon the charge of robbery.

I. The fact that the complainant saw the five-dollar bill the day before, and then replaced it in his inside vest pocket was sufficient evidence from which the jury could infer that it was in his possession on the occasion in question; and the fact, that he could feel and occasionally did feel the ten-dollar gold piece in the fob pocket of his trousers, is sufficient evidence from which the jury could reasonably infer that it was in his possession when he was set upon by the four ruffians, although he had not taken it out and gazed upon it every half-hour after leaving Boston.

II. Defendant was one of the four men who were-grouped about the complainant, and fled upon the approach of the officer.

As soon as the officer approached the scene the four men fled. The officer pursued them all until they separated and fled in different directions. Singling out one of the four, the officer pursued him, rapping for assistance as he ran, and keeping the fugitive always in sight except for a moment or two as he turned corners. The fugitive was stopped and arrested by an officer and was delivered to the pursuing policeman, by whom he was recognized as the man he had. been chasing.

Alfred Stechler, for defendant, appellant.

The appellant was convicted of robbery in. the first degree and sentenced to twelve years imprisonment in the state prison. Upon the trial, and after the people: had rested, the court was requested te direct an acquittal, which was declined, and an exception taken. The complainant was George Phillips, a resident of Boston, who

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carne to New York in pursuit of employment in the middle of February of this year. He left Boston at six o’clock on Monday night and arrived on Tuesday morning. He and his fellow passenger, whoever he was, had, as he. said on the trial,-a few drinks the first day, by which he means, it is supposed, Tuesday, and he had more on-Wednesday. It was on the evening of that day that the robbery is alleged to have taken place. He says further, that he went to bed on Tuesday night in an up-town hotel and on Wednesday morning when he got up he started to drink and kept drinking pretty well all that day, that he was pretty drunk, but could take care of himself if people would let him alone. He was set upon in the evening about six o’clock, he says, and a ten-dollar gold piece and a five-dollar bill taken from him by violence. It appears, however, that he had not counted his money or taken it out, as he said, after coming from Boston, and it appears on his own evidence that the last time he had his eyes on his money was in Boston, that a ten-dollar gold piece which he said was taken from him he had not taken out of his pocket since he left Boston, and the last time he saw the five-dollar bill was when he changed a five-dollar bill the day previous. It seems that he had two five-dollar bills and changed one and put the other in the inside pocket of his vest. That was about 11 o’clock on Tuesday morning and about twenty-six hours before the robbery is alleged to have taken place. He thought that he had possession of the ten-dollar gold piece at the time that he was assaulted, because he felt it occasionally when he put his hand in his pocket, the fob pocket, where he felt the money and key. It does not appear, however, whether he inserted his hand in the fob pocket or the other pocket of his pantaloons, but he added to that: “ I can not fix the time when I last felt that gold piece and key. It was in the morning, the early part of the day.” He also said : “ I never saw the defendant here before, never before in my life, not before the following morning.” And the officer who arrived upon the scene of

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disturbance about the time of its occurrence said that he saw the complainant stagger down Duane Street very much under the influence of liquor about seven o’clock in the evening, and it appears that the prisoner was searched, having been almost immediately arrested after the alleged assault and robbery, and ten or twelve cents only found upon him. He established by competent evidence a good character.

The statement of the complainant is a very much confused one and forces the conclusion that his recollection of the incidents of his assault were indistinct and therefore that his testimony was too unreliable without valuable corroboration to justify a conviction. He had not seen, according to his own confession, the gold piece for two days before the alleged robbery, but had felt it on the date of that occurrence and at a time when, according to his own confession, he was intoxicated, evidently continuing on that morning a dissipation, if not-a drunk, of the day previous, and enlarging upon it apparently until, as the officer says, “he was very much under the influence of liquor.” It may be said, indeed, that he was grossly intoxicated. He was evidently not in a condition to identify any one of the men by whom he was assaulted. He had not seen the five-dollar bill for about twenty-six hours prior to the alleged assault, and the only circumstance having any importance with reference to the guilt of the prisoner in connection with the alleged robbery is that he fled, but he explains that by expressing an apprehension, to use his own language,- “ that lie would get a licking from the policeman.”

A careful and deliberate examination of the evidence has led to the conclusion that there should have been corroborative evidence as to the possession of the money which the plaintiff said was taken from him, so as to leave no doubt upon that fact, inasmuch as his drunken state justifies many conjectures as to what might have happened in reference to the money during Wednesday and the night previous, its loss or disappearance in many ways, especially

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as he had a companion who was not produced for examination upon the trial. The charge against the .prisoner is grave and the punishment severe, as it ought to have been 'if the offense charged had been established by competent and satisfactory evidence, which can rarely be the case when it is given almost exclusively by a man who from a continuous spree was in a superlative state of gross intoxication at the time of the occurrence detailed.

For these reasons, it is thought that the motion to direct an acquittal should have been granted; an error was committed in refusing to make that disposition of the indictment.

Judgment reversed, and new trial ordered.

Van Brunt, P. J., and Macomber, J., concur.