Opinion
June 3, 1927.
Appeal from County Court of Kings County.
Edward J. Reilly, for the appellant.
Henry J. Walsh, Assistant District Attorney [ Charles J. Dodd, District Attorney, with him on the brief], for the respondent.
This appeal was heard on defendant's application, consented to by the district attorney, upon the printed record in People v. Marcus ( 220 App. Div. 697).
In this case we are constrained to reverse the judgment of conviction for the sole reason that there was no sufficient evidence at the trial showing possession of the stolen property by the defendant Stern. In the case of the other defendants, Marcus, Tilzer and Stein, there was evidence of possession of the stolen furs in the defendants on the day of their arrest in Brooklyn, three days after the burglary in New York. But in the case of Stern, the evidence showed his arrival at the apartment house in Brooklyn, about eleven o'clock in the morning, staying in the apartment house for some time but without evidence as to which apartment he visited. He came out of the apartment house about a quarter to three in the afternoon with defendants Marcus and Tilzer, but, according to the witnesses, he went directly to his automobile, which he entered. His two companions stood on the curb and hailed a passing taxicab. One of them, Marcus, made arrangements with the driver to take a trunk to the Bronx, and the driver accompanied them to the lobby of the apartment house, from which they subsequently came out, Marcus and the cab driver carrying a trunk and Tilzer holding the door open for them. But during all this time the evidence at the trial was that the defendant Stern remained in his automobile outside, and that he took no part in the removal of the trunk, which contained the stolen furs. We can find no evidence justifying a finding that he was at any time in possession of the stolen property. The police say that he told them he came over to buy some of the furs, but that they were too old, and, therefore, he did not purchase any of them.
The point made by the appellant Stern concerning the constitutionality of section 391 of the Code of Criminal Procedure (as amd. by Laws of 1926, chap. 461), so far as it affects the appellant's right to challenge jurymen, is not presented on the record before us. The appellant's motion for a separate trial was not made until after the jury had been "duly drawn, examined, accepted, empanelled and sworn to try this issue, the defendants having been informed of their rights under section 369 of the Code of Criminal Procedure," and not until after the district attorney had opened for the prosecution. There is nothing in the record to show that the appellant's right to challenge was interfered with in any way.
The judgment of conviction should be reversed upon the law and the facts, and a new trial granted.
KELLY, P.J., MANNING, KAPPER, LAZANSKY and HAGARTY, JJ., concur.
Judgment of conviction reversed upon the law and the facts, and new trial granted.