People v. Klein

117 A.D. 196, 20 N.Y. Crim. 511, 102 N.Y.S. 289, 1907 N.Y. App. Div. LEXIS 220

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1907
• Status: Published

Opinions

Lambert, J.:

The appellant was indicted with one Abraham Cohen in the Court of General Sessions, charged with the crime of grand larceny in the second degree. They were both convicted, the defendant Klein alone appealing. It is urged on the part of the appellant that the learned court erred in submitting the case against Klein to the jury, and while it must be admitted that the evidence was not as conclusive as might be desired.in a case of this character, we are of opinion that it was not error to submit the question of guilt, and. that the evidence is sufficient to support the judgment of conviction.

The evidence shows that one Antoinette Bally, the complaining witness, was upon one' of the public highways of the city on the 16th day of July, 1906, .watching a parade to celebrate an- Italian holiday. The defendant Cdhen-approached her, put his hand into her purse and extracted a iive-dollar bill, and was arrested by Policeman Bonanno while engaged in the act. Simultaneously the defendant Klein, who was immediately behind the complaining witness, and within two feet of her, was arrested by Officer De Guida. Cohen was convicted, and does not appeal. Officer Bonanno testifies that he ivas on duty on One Hundred and Fifteenth street, near Second avenue, with Officer He Guida, when they saw the defendants Cohen and Klein standing there and acting in a suspicious manner; that these officers watched the two for about ten minutes; that the complaining witness and two or three other women passed ' along, and that the witness saw Cohen follow the"women, and “the big one (Klein) right after him; ” that the officers crossed the street and the witness saw Cohen with his hand in the woman’s bag and grabbed him, the latter dropping a five-dollar bill, which was recognized as belonging to the complaining witness. The defendants had been talking together; were walking in the opposite direction and talking, and Cohen turned to go in the opposite direction, and Klein followed him, and was immediately back of and in supporting distance of Cohen when the latter opened the purse and took the money, and while it is true that Cohen denied knowing the defendant Klein, the credibility of his evidence, ih view of the conceded facts, was one for the jury. Klein is not shown to have raised his hand or to have done any physical act in consummation of* the crime, but he was in a position to do so; his act in following the defendant Cohen, talking with him up to the very moment of the crime, and the fact that he had changed his course apparently, for the very purpose of being at hand, in connection with the other circumstances, is sufficient to support the verdict in this case.

We do not find error in the charge; the trial court has a right to discuss, temperately, the conditions which are of common knowledge in relation to the commission of crime, for the' purpose of impressing a duty upon the jury, and we are' of opinion that the court was Well within its discretionary powers in the language used in the charge, to which no exception was taken. It is true, of course, in a criminal case this court is not necessarily limited to the consideration of exceptions, but where there is a mis-statement of the law, and the question goes merely to the discussion of the court, it will "rarely avail to overrule a judgment of conviction; certainly not where the charge is criticised for no other defect than that of calling attention to abuses well known to exist, and which it is the policy of the law to prevent, so'far as possible, by the administration of justice. . . * ' ' ' '

The. judgment should be affirmed.

Ingraham and Houghton, JJ., concurred; Patterson, P. J., concurred in result: McLaughlin, J., dissented.