(182 N.Y.S.)

This leads us to the conclusion that the defendant has been convicted under an information which charged one state of facts as constituting criminally receiving stolen property while the proof was of a totally different state of facts, which, by the Code, also constituted that crime. The difficulty was that the crime as charged was not proved, and the crime as proved was not charged. People v. Dumar, supra. The judgment of conviction should be reversed, and a new trial ordered. All concur.

(191 App. Div. 795)

PEOPLE v. McPORLAND.

(Supreme Court, Appellate Division, Second Department. May 14, 1920.) 1. Criminal law 511 (2)-Test as to sufficiency of evidence corroborative of accomplice stated.

Code Cr. Proc. § 399, requiring an accomplice to be corroborated by evidence tending to connect defendant with the commission of the crime, does not require that the corroborative evidence be sufficient to prove dedefendant's guilt, or that such corroboration extend to all the elements of the crime, notwithstanding Penal Law, § 2013, nor be wholly inconsistent with the theory of defendant's innocence; but such evidence must be from an independent source as to some material fact tending to show, not only that the crime has been committed, but that the defendant was implicated in it.

2. Criminal law ~511 (2)-Evidence held not to corroborate accomplice. In prosecution for larceny, evidence held insufficient to sustain conviction, in that there was no evidence in corroboration of testimony of an accomplice tending to connect or implicate defendant in the commission of the crime.

Appeal from Queens County Court.

James E. McPorland was convicted of grand larceny in the second degree and he appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

K. Henry Rosenberg, of New York City, for appellant.

William F. Ryan, of Jamaica (Denis O'Leary, Dist. Atty., and Harry Van Alst, both of Long Island City, on the brief), for the People.

BLACKMAR, J. This appeal presents the question whether an accomplice was corroborated by evidence which tended to connect the defendant with the commission of the crime. Section 399, Code Cr. Proc.

The defendant maintained a garage on Greenwood avenue, Richmond Hill, where he conducted an express business. Cleary, a liquor dealer, for lack of room in his own place, left with defendant on storage two barrels of whisky. The testimony upon which the defendant was convicted was mainly given by Kender, who was employed by defendant occasionally as a helper. Kender testified that on the 15th of December defendant told him he was short of money, and arranged with him to take two barrels of whisky from the garage and sell them to a saloon keeper named Max Gordon, whose place

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of business was on Jamaica avenue; that defendant scraped the serial numbers off the barrels and painted the heads white; that defendant broke the lock of the door of the garage, in order to give it the appearance of having been burglarized; that after looking in vain for a wagon to take the whisky over to Gordon's place, Kender, at defendant's direction, loaded the whisky at night on an automobile truck owned by defendant, took the whisky to Gordon's saloon, and received from Gordon the sum of $140, leaving the truck in the street; that defendant came to his home in the morning, received the $140, and gave him $30 for his services. Shortly after the theft Kender left for Philadelphia, where he found employment, but soon returned to Brooklyn on foot, and gave information of the connection of defendant with the commission of the crime.

The following evidence is relied on by the district attorney to corroborate the accomplice: (1) The testimony of Kender's wife that early in the morning of December 16th the defendant came to her house, told her that the automobile had been stolen, went with Kender into the kitchen, stayed there about ten minutes, and left, and that after he left Kender gave her $25. (2) The testimony of the chauffeur, Scheffler, that Kender, in the defendant's presence, told him to back in the truck, and it was backed in alongside the two barrels of whisky. (3) The testimony of Peters, who found the truck near a police station, where Kender says he was directed by the defendant to leave it. (4) The testimony of Cleary, who deposed that the defendant suggested to him that the tax should not be paid upon the whisky.

[1, 2] The statute does not require that the corroborative evidence should be sufficient to prove the defendant's guilt. At common law the accused could be convicted on the evidence of the accomplice alone. The motive to shift the guilt from the accomplice's own shoulders. was so apparent that courts were accustomed to warn jurors against a too ready acceptance of the evidence of the accomplice unless corroborated; and the principle was enacted into statutory law and is now found in section 399 of the Code of Criminal Procedure. There need not be independent evidence sufficient to convict, nor need the corroboration extend to all the elements of the crime, as is required for the testimony of certain classes of witnesses in prosecution for other crimes. Section 2013, Penal Law (Consol. Laws, c. 40); section 392, Code Cr. Proc.; People v. Page, 162 N. Y. 272, 56 N. E. 750. There must be other evidence tending to connect the defendant with the commission of the crime. The word "commission" is the important word. The other evidence must implicate the defendant in the guilty act. While such other evidence need not be wholly inconsistent with the theory of the defendant's innocence (People v. Elliott, 106 N. Y. 292, 12 Ñ. E. 602), yet in the words of Judge Andrews in People v. Hooghkerk, 96 N. Y. 149, "corroborative evidence, to have any value, must be evidence from an independent source of some material fact tending to show, not only that the crime has been committed, but that the defendant was implicated in it" (People v. O'Farrell, 175 N. Y. 323, 67 N. E. 588). Bearing in mind the reason for the

(182 N.Y.S.)

rule, that Kender for self-protection would have a strong motive to throw his burden on another's shoulders, and that the fact that the defendant owned the garage where the whisky was stored made him the most convenient scapegoat, we find nothing tending to show that the defendant was implicated in the crime. After the burglary was discovered by defendant, it was natural that he should seek his employé; the fact that Kender had money in his possession after defendant's visit is no indication that defendant shared in the plunder; his statement to his wife that defendant gave it to him is not "other" evidence, for it comes from the accomplice himself; that the truck was backed into the garage was not unusual, when it was empty; the testimony of Cleary that defendant advised that the tax be not paid is of no force, in face of the further testimony that he told the defendant he intended to pay it. These facts might have existed, if defendant was guilty; but they do not tend to connect or implicate him in the commission of the crime. Each act is entirely consistent with innocence, and does not, even when taken in connection with Kender's testimony, indicate guilt.

The judgment of conviction should be reversed, and a new trial ordered.. All concur.

(191 App. Div. 870)

KEISTER v. WADE.

(Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Bills and notes 36-Note payable after date, without grace, held "negotiable instrument payable on demand."

A note promising payment after date, without grace," is a "negotiable instrument payable on demand," within Negotiable Instruments Law, § 20, providing that a negotiable instrument must be payable on demand, or at a fixed or determinable future time, and section 26, providing that an instrument in which no time of payment is expressed is payable on demand.

2. Bills and notes 129 (3)-Where no specific time of payment is mentioned, note is payable immediately on demand.

At common law, as well as under Negotiable Instruments Law, § 26, where no specific time is mentioned when a note is to be paid, it is payable immediately upon demand.

Appeal from Special Term, New York County.

Action by George Keister against Henry C. Wade. From an order and judgment dismissing the complaint (109 Misc. Rep. 313, 179 N. Y. Supp. 609), plaintiff appeals. Reversed, and judgment ordered. Argued before DOWLING, LAUGHLIN, PAGE, MERRELL, and GREENBAUM, JJ.

Putney, Twombly & Putney, of New York City (Walter H. Griffin, of New York City, of counsel), for appellant.

Joseph M. Herzberg, of New York City, for respondent.

MERRELL, J. The action was upon a promissory note made by the defendant, payable to the plaintiff. The note, so far as pertinent to the question involved upon this appeal, was in the following form:

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"$3,100.00

66

New York, September 10, 1918. after date, without grace, the undersigned, for value received, hereby promises to pay to George Keister, or order, at his office, No. 56 West 45th street, New York City, the sum of $3,100.00, with interest at the rate of 6 per cent. per annum, having deposited herewith and pledged as collateral security for the payment of this and any other liability of the undersigned to Keister now due or hereafter to become due the following property: Five hundred (500) shares of the capital stock of the Cuban Motor Spirits Company.

*

The instrument then further provided for a sale of the said collateral pledged as security for the payment of the note in case of default in payment, and was signed by the maker, Henry Clay Wade.

The answer of the defendant admitted the execution and delivery of said note to the plaintiff, but alleged that the defendant made the note for the benefit and accommodation of the plaintiff, and without the plaintiff paying to the defendant any value or consideration therefor.

The action was tried and presented to the jury upon the sole issue as to whether or not the note was upon due consideration paid by the plaintiff to the defendant. The plaintiff, after proving the execution and delivery of the note and demand and refusal of payment, rested. Thereupon defendant moved to dismiss the complaint on the ground that plaintiff had failed to prove a cause of action, particularly that the note sued upon was an incomplete instrument upon its face, there being no time for payment thereof expressed, and upon which motion to dismiss the court reserved decision. The defendant thereupon introduced testimony tending to show that the note was given for plaintiff's accommodation and was without consideration. In rebuttal the plaintiff disputed defendant's contention in this respect, and gave testimony showing that the note was made for value received. At the close of the evidence defendant's motion to dismiss, made at the close of plaintiff's case, was renewed, and the court again reserved decision thereon. The issues were thereupon submitted to the jury, and a verdict was rendered in plaintiff's favor against the defendant for $3,310.68, being the full amount claimed, with interest.

Thereupon counsel for the defendant moved to set aside the verdict upon the grounds mentioned in section 999 of the Code of Civil Procedure, and upon the ground that the verdict was contrary to law and excessive in amount. The record does not show that such motion was entertained by the court, and the court did not determine the same. Counsel for the defendant thereupon again renewed the motion, made in defendant's behalf at the close of the plaintiff's case and at the close of the evidence, for the dismissal of the complaint on the ground that the plaintiff had failed to prove a cause of action, particularly that the note sued upon was an incomplete instrument upon its face, there being no time for payment thereof expressed, upon which decision had theretofore been reserved. Thereupon, the court again reserved decision thereon, and called for briefs on the question involved as to the validity of the note in suit. Briefs were submitted and the court made its decision, holding that the note in suit.

(182 N.Y.S.)

was an incomplete instrument, and thereupon dismissed the plaintiff's complaint, with costs. Upon such decision the order and judgment appealed from were entered.

I think the court was clearly in error in holding the note in suit to be invalid and unenforceable as an incomplete instrument. In its decision the court below based its dismissal of the complaint upon the proposition that the note in suit was not negotiable. I think, within the plain provisions of the Negotiable Instruments Law (Consol. Laws, c. 38) the note was negotiable, as an instrument payable upon demand. Section 20 of the Negotiable Instruments Law provides as follows:

"Form of Negotiable Instrument.-An instrument to be negotiable must conform to the following requirements: *

"3. Must be payable on demand, or at a fixed or determinable future time.

Section 26 defines an instrument payable on demand as follows: "When Payable on Demand.-An instrument is payable on demand: "1. Where it is expressed to be payable on demand, or at sight, or on presentation; or

“2. In which no time for payment is expressed."

The note in suit clearly satisfies all of said statutory requirements as a negotiable instrument. It provides as follows:

—after date, without grace, the undersigned, for value received, hereby promises to pay to George Keister, or order, at his office, the sum

of $3,100.00, with interest at the rate of 6 per cent. per annum.

[1] The note in suit is therefore an instrument in which no time for payment is expressed, and, being such, is under the provisions of section 26 of the Negotiable Instruments Law, payable on demand, and therefore a negotiable instrument within the statute. Moreover, the question of negotiability is not, I think, involved in this case. The note was in fact never negotiated, the action being brought by the payee against the maker. Aside from the fact whether it is negotiable or not, the note in suit is a contract between the parties for the payment of money, and is signed by the defendant. The provisions of the Negotiable Instruments Law above referred to are but the codification of well-settled and long-established principles of common law.

[2] Where no specific time is mentioned when a note is to be paid, it is payable immediately upon demand. The common-law rule with reference to promissory notes of this character is well expressed in 1 Daniel on Negotiable Instruments (6th Ed.) at page 134, as follows:

"Sometimes they are payable on demand, or no time is specified, in which case on demand is understood. If the time of payment be left blank, as, for instance, if the instrument be payable months after date,' the like rule would apply."

Had the words, "after date, without grace," been omitted from the note in suit, it would have read: