Opinion
March, 1925.
Judgment of conviction of the County Court of Nassau county and order denying motion for new trial on the ground of newly-discovered evidence affirmed. No opinion. Kelly, P.J., Manning and Young, JJ., concur; Rich, J., absent and not voting; Kapper, J., dissents and votes for reversal and a new trial on the ground that the evidence does not establish the commission of the crime of burglary. There was no purpose of larceny inside of the boat as charged in the indictment and none was proved. Those in charge of the boat unlocked and opened the door to permit defendant to come in. Defendant's purpose as established by the proof was to obtain the temporary use of the boat with the aid of those in charge of it for an errand of a character which it may be inferred was similar to that performed on a prior occasion, namely, the use of the boat to tow another boat on which liquor was probably being illegally carried. The intention to steal the boat itself could only be found as a fact if the circumstances were consistent solely with that hypothesis. Those circumstances point singly to the temporary use of the boat with the acquiescence of the men in charge and for the latter's pecuniary benefit. The alleged assault was not charged in the indictment, and the assault, if it took place, was not the outcome of a burglarious entry.