People v. Kehoe — 46 N.Y. St. Rep. 223

Majority

p. 223

The People, Resp’ts, v. James Kehoe, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

1. Larceny—Indictment.

Under a count in an indictment for taking three one-gallon crocks of preserves a defendant cannot he convicted of stealing a three gallon crock of preserves.

p. 224

2. Same—Value oe property stolen.

The indictment charged defendant with stealing articles to the value of $28.50. The chickens alleged to have been taken, valued at three dollars were not found in defendant’s possession; a carpet was not shown to be worth its alleged value and defendant'was shown to have taken a three gallon crock of preserves instead of three one-gallon crocks. Held, that a conviction of grand larceny could not be sustained; that he should have been convicted of petit larceny only.

Appeal from judgment of conviction of the crime of grand larceny in the second degree.

H. V. Borst (Z. S. Westbrook, of counsel), for app’lt; Charles S. Nisbet, for resp’ts.

This is an appeal by the defendant from a judgment of conviction of the .court of sessions of Montgomery county rendered February 22, 1892, convicting him of the crime of grand larceny in the second degree, under which he was sentenced to state prison for two years.

The evidence in the case amply sustains the verdict of the jury convicting the defendant of larceny. He was found in possession of the stolen property under such suspicious circumstances that the jury could properly under § 528 of the Penal Code deem him guilty of the crime charged.

But I think the testimony given on the trial failed to satisfactorily show that the property stolen was of the value of twenty-five dollars.

The property claimed to have been taken by Mrs. Mullarkey and her estimate of the value of the same is as follows :

Carpet........................................... $15 00

3 gallons crock pears.............................. 2 00

3 gallons crock cherries............................ 2 00

Quart of quinces.................................. 50

6 chickens.....■................................... 3 00

Bed quilt........................................ 2 00

Bed rug.......................................... 2 00

3 gallons crock raspberries......................?... 2 00

In all the value of........................... $28 50

The only evidence showing the larceny was the finding of the property in the possession of the defendant. Deducting the value of the chickens, which were not found in his possession, three dollars, leaves the estimated value of the property taken $25.50. The only witness as to value was Mrs. Mullarkey. To bring the property taken by defendant up to twenty-five dollars the carpet must be estimated at fifteen dollars. But the witness testified, not that the carpet is worth fifteen dollars, but about fifteen dollars; and on her cross-examination she swore that the carpet probably might not be worth over forty cents a yard in the market, which would make it worth $10.80, instead of fifteen dollars.

Again the indictment charges the prisoner with taking three one-gallon crocks of preserved pears and three one-gallon crocks of preserved cherries. The defendant could not properly be con

p. 225

victed under this indictment of stealing a three gallon crock of pears and a three gallon crock of cherries; hence, four dollars, the estimated value of said crocks, should be deducted from the said sum of $25.50, the estimated value of the property found in defendant’s possession.

On the whole I think the evidence fails to show that the property stolen by defendant was of the value of twenty-five dollars.

Hence he should have been -convicted of petit and not grand larceny.

The judgment of conviction should be reversed and a new trial granted.

Mayham, P. J., and Herrick, J., concur.