People v. Williams — 34 N.Y. St. Rep. 675

Majority

p. 675

The People, Resp’ts, v. Thomas Williams et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed November 28, 1890.)

Headnote

Larceny—Evidence.

Defendants were convicted of petit larceny ; the evidence showed that they went into complainant’s store and bought a small amount of candy, offering in payment a twenty dollar bill. After receiving the change they walked to the front of the store and then said they had found enough money in their pockets to pay for the candy and thereupon tendered back the change" first given them. Subsequently it was discovered that a ten dollar bill had heen abstracted from this latter amount. Upon the trial the people were allowed to show that upon the same day the defendants had performed the same trick in other places in the same city, the attendant circumstances being almost identical. Held,, no error.

Appeal from a conviction by and before the court of special sessions of the city of Albany, on a charge of petit larceny, alleged to have been committed in stealing ten dollars ($10.00), the property of one George A. Dayton. The evidence of the complainant shows that on the morning of the day of the alleged larceny he counted the bank bills kept by him in a package in the inner compartment of the safe in his store, and that there were in

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that package $224 in bills, the denominations of which he could not state.

That he locked the inner compartment where the money was with a key and put it under a shelf ; that the outer door of the ■safe was locked by a combination lock; that in his business as ■confectioner he was assisted by his wife and a Miss Eeed; that he did not at any time during the day, from the time of counting the money in the morning until the time of the alleged larceny, interfere with that package, except once to put with it a two dollar ($2.00) bill and take out a one dollar bill.

That about seven o’clock in the evening Ferguson and Williams came into the store and asked to purchase some candy, and on being served, handed a $20.00 bill in payment, and on being asked if they had anything smaller, answered in the negative, whereupon complainant went to the safe, opened the inner compartment and took out $19.00 and handed it with the change to Ferguson and received the $20 bill; defendants then walked towards the front of the store and complainant towards the safe, when Ferguson addressing complainant asked him to return the $20.00 as he had found change, and did not like to be carrying about small change, and pursuant to that request complainant returned to the defendant the $20.00 bill and received back what he at the time supposed was the money he had parted with, but which he returned to the safe without counting.

Soon after that he was asked by a detective if he had lost any money ; and on examining the package in the safe found that it contained but $215.

On his cross-examination the complainant said he'paid his help that day and would not swear positively how many times he put bills in or took them out of that package that day; don’t remember how many times he went in the safe and made change from these bills, positively.

Miss Eeed and Mrs. Dayton, who assisted in the store, both testified that they did not interfere with or take any bills from this package in the inner compartment of the safe that day.

This is the substance of the evidence tending to establish the corpus delicti.

The prosecution then called as a witness a druggist, who was permitted by the court under defendant’s objection to testify, that on the same evening of the occurrence charged in the complaint, the defendants Ferguson and Eodgers bought a cake of soap and tendered a twenty dollar bill in payment, and on being asked if they had any thing smaller answered in the negative, and the bill was taken and $19.80 returned to them in change. Ferguson requested the return of the $20 bill and offered the change for the soap, but was refused, and before leaving the defendant Eodgers bought a stick of licorice and tendered in payment .a five dollar bill, and the clerk refused to change it and told him to pay at some other time.

The prosecution proved, under like objection, that on the same evening the defendants, Ferguson and Williams, called at a tea store and purchased a half pound of tea for twenty-five cents, and

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Ferguson handed in payment a $20.00 bill and received in change $19.75, and after receiving it said he could pay for the tea in change and requested the return of the $20.00 bill; the clerk looked over the money which defendant 'proposed to return and then got the $20.00 bill and gave it to Ferguson. Defendant Dodgers came in the store while the other two defendants were there, and purchased a pound of sugar at seven cents and paid for it, but did not speak to the other defendants.

Under a similar objection by the defendants the people also proved that on the same evening Ferguson and Williams went into a restaurant and bought twenty-five cents’ worth of cigars, and handed a $20.00 bill in payment and received $19.75 in change, after which one of them found he had a quarter and requested the return of the $20.00 bill, and it was given them; they shoved back the change which was put in the draw, and on making the account later in the evening the account was found to be short $10.00.

James 0. Matthews, for app’lts; Andrew Hamilton, dist. attorney, for resp’ts.

We think the evidence sufficient to establish a corpas delicti and that the finding of the jury that the crime charged was committed is fully sustained by the evidence.

The appellant insists that the learned recorder erred in admitting, under objection, the evidence of the acts of these defendants at other stores on the same evening of a somewhat similar character to that at the store of Dayton.

This evidence was doubtless offered by the people for the purpose of showing the motive of the purchasers in tendering the twenty dollar bill, and receiving other and necessarily smaller bills in exchange, so that they might abstract one or more of the smaller bills, and return the balance unobserved in exchange for the twenty dollar bill, and thus steal the bill or bills so abstracted; such a device artfully practiced by a shrewd operator might easily deceive the unsuspecting tradesman in the hurry of business, and there is some evidence in this case that it has become one of the methods of larceny under the name of “ flim-flam.”

The defendant’s counsel relies upon The People v. Corbin, 56 N. Y., 363 , and Coleman v. The People, 55 id., 81, as authorities in support of his objections to this evidence.

In the case first above cited, the court held that it was not proper on the trial of an indictment for forgery to prove that the defendant had admitted that he had committed other forgeries, and in the latter case that it was not competent on the trial of an indictment for receiving stolen goods to show, for the purpose of proving the scienter, that the prisoner had received other stolen ¡property.

Neither of these cases come entirely within the principle under which the evidence in the case at bar was offered and received.

They were not offered to be shown proximate in time, nor precisely identical in character, with the crimes charged in the" indictment.

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We think the case now before this court is more nearly in principle like the case of Weyman v. The People, 4 Hun, 517 ; aff’d 62 N. Y., 623 , and the cases there cited.

In that case it was held to be competent for the People to show that on the day of the alleged commission of the crime charged, and on the next day, the prisoner in the same way, and by the same means, procured similar articles of other persons, and the court says such evidence “ is competent to show that the party accused was engaged in other similar frauds about the same time, provided that the transactions are so connected as to time, and so similar in their relations that the same motive may reasonably be imputed to them all.” See, also, Hall v. Naylor, 18 N. Y., 588 ; Hennequin v. Naylor, 24 id., 139.

This kind of evidence is frequently resorted to in the trials of indictments.for passing counterfeit money, and the object of such testimony is to prove that the act is not an isolated or accidental occurrence, but that it was done by deliberate design.

We think this evidence under the circumstances of this case was proper, and that the exception to its admission was not well taken.

We discover no error in the admission- of evidence or in the charge of the recorder to the jury; and the jury having found the defendants guilty upon evidence sufficient to uphold the verdict, we think the judgment of conviction and sentence pronounced was -proper.

It is quite true, as is urged by the counsel for the defendants, that the right of trial by a jury is guaranteed to the defendants, and they are in no way responsible for the failure of two previous juries to agree, and that fact alone should not aggravate their punishment.

But the judgment and sentence pronounced was within the limits of the jurisdiction of the court which pronounced it, and we do not think it is the province of this court on this appeal to criticise or interfere with it.

Judgment of conviction is affirmed.

Learned, P. J., and Landon, J., concur.'