People v. Zuckerman

133 A.D. 615, 23 N.Y. Crim. 571, 118 N.Y.S. 127, 1909 N.Y. App. Div. LEXIS 2237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1909
• Status: Published

Opinion

McLaughlin, J.:

The defendant appeals from a judgment convicting him of attempting to commit the crime of grand larceny in the second degree, for which he was sentenced to State’s prison for a term of two years and four months.

The evidence on the part of the People tended to show that on the 1st of November, 1907, a firm by the name of Ginsburg & Brother, who did business in the city of New York, consigned a package to P. Diamond, at Putnam, in the State of Connecticut, and delivered the same to the Adams Express Company for shipment; that there was pasted on the wrapper around the package the name of the consignor- and the consignee and his address; that some time after such delivery to the express company, one of its employees discovered that there was pasted over the-original label another one, from which the package purported to be consigned by I. Feldman, importer, or Feldman & Co., to “ J. Zuckerman, 62 East 113 street,” as consignee; that the police department was thereupon notified and an arrangement made-by which one of the express company ’s employees, accompanied by a detective of the police department, delivered the package to the defendant at the address given ; that after Zuckerman received the package and'receipted-for it and paid the express charges thereon, he .was immediately placed under arrest; that after his arrest he stated to the officer who had him in charge that he expected to receive a package from I. Feldman for a friend of his; that, the officer testified, he asked him who the friend Was and the defendant refused to state, and' when asked what Was the address of Feldman or Feldman '& Go., he stated - “ where the label says- they are from; ” and that no such person as Feldman or Feldman & Co. could be found at the address on-the label, nor could any such name be found in any of ’the directories of the city;

Keither the defendant nor any witnesses were sworn in his behalf, nor did he offer any evidence whatever.

1 think the evidence presented on the part of t.h'e People estab- . lished a prima facie case against the' defendant which required submission to the jury. It was proved beyond a question' that some one had placed the false Feldman label, over the. true Gtinsburg'one while the ¡lackage ivas in the express company’s office. From .this the jury was justified in- finding that such false label was placed there by some person with intent to steal-the' package, and this, taken in. connection with the fact that the defendant was the consignee náméd ; that lie received the package at the'address given and receipted for it -and paid the express charges thereon ; that he - stated- to, the officer who made the arrest that he expected a package - from a concern which could not be found, for a “ friend ” who had asked him to receive it; and his refusal tó give the name of the “friend” of to offer any other explanation justified the jury in find^ing, in the absence of any evidence to the contrary^ that he was such person, or that it Was some person acting'in concert with him. In the-latter case the defendant was just as much a principal as the one who acted with him. (Penal Code, § 29; People v. McKennq,, 118 App. Div. 766.) The intent to steal the package, under such circumstances, seems to be the -only reasonable; conclusion which / can be reached. (McCarney v. People, 83 N. Y. 408; People v. Klein, 117 App. Div. 196; People v. Darrow, 69 id. 615; affd., 171 N. Y. 697.)

Several errors are alleged, but an examination does not disclose that the defendant could have been prejudiced by them, or that they are of such a character as would justify a reversal of the judgment.

The judgment of conviction is, therefore, affirmed.

Ingraham, Latjghlin, Olaeke and Houghton, JJ., concurred.

Judgment affirmed.