cles peculiar to that line of trade, the dealer, if an honest and prudent man, would naturally suspect, not only that the goods had been stolen, but that they had all been stolen from the same owner. That would be guilty knowledge. If another school boy should bring to a dealer in second-hand goods a valuable watch on one day, a gun on another day, a fur-lined overcoat on still another day, and so continue to bring various articles for an indefinite number of days, there would be quite as little escape from the conclusion that the different articles had been stolen as in the instance first cited, but not necessarily that they had all been stolen from the same person; on the contrary, it would be rather convincing evidence that they had been stolen from different owners. Would the inference of receiver's guilty knowledge be any the less cogent because the goods had not all been taken from the same owner? The whole question depends upon the connection between the transaction sought to be proved and the one set forth in the indictment. If the same thief brings goods to the same receiver, the question whether the articles were all alike and stolen from one owner, or whether they were unlike and stolen from different persons, may be important as bearing upon the guilty knowledge of the receiver, but we can see no reason for making this naked distinction the sole factor which determines whether evidence of this character is admissible or not. If the distinction. referred to were alone permitted to control, then a professional receiver of stolen goods could make himself absolutely immune from conviction and punishment by simply insisting that the thieves with whom he deals should not steal more than once from any one person.

The subject is one that is capable of much more voluminous argument and illustration, but enough has been said to bring us directly to the practical application of the discussion to the case at bar. The thieves in this case were young boys under fifteen years of age. The defendant was a man of mature years.

The boys were going to school and the defendant was conducting a harness and junk shop. The village in which they all resided is a small one, where almost every resident is prob ably known to every other. When the boys went to the defendant's shop to ask if he would buy a hide, instead of making such inquiries as the ages of these boys, coupled with the various occupations of their fathers, would have suggested to a prudent and honest tradesman, the defendant told the boys that he would buy all they could bring at six cents a pound. The first hide brought to the defendant by these boys was the one stolen by them from the Fisher tannery. Even if we assume that there was nothing in the appearance of that hide to put the defendant on his guard, the circumstances above referred to were such, we think, as would have put an honest man upon inquiry. There was enough, to say the least, to warrant the jury in drawing the inference that the defendant was chargeable with knowledge that the boys did not honestly obtain possession of the hide. Within a few days thereafter the same boys brought to the defendant the hide specified in the indictment. It was not a green, domestic hide like the first one, but a Texas hide that was comparatively dry and done up in a way quite familiar to dealers in hides. While the defendant might have been thrown off his guard in the purchase of the first hide by the remark of one of the boys, "that his father had killed a cow," the second hide, for receiving which the defendant was tried and convicted, was of such a character that not even a novice in the business could have been deceived. The first thing that would have suggested itself to an honest dealer would have been to ask the boys where they got the hide, but no such inquiry was made, and the only excuse presented for defendant's failure to do so is that he bought the hide without opening it to ascertain its condition. The market price of such hides was eleven cents per pound, while the defendant paid only six cents per pound.

answers.

Was there not such a connection of time, place and circumstance between the two transactions that proof of the former was cogent evidence of defendant's guilty knowledge in the latter? Would the proof upon the subject of defendant's guilty knowledge be any more convincing or pertinent if the first hide had been stolen from the same owner as the hide set forth in the indictment? These questions seem to us to carry their own Our conclusion, therefore, is that neither authority nor principle require us to hold that in prosecutions for receiving stolen property, evidence of other receivings by the same defendant from the same thief, can be admitted upon the question of a defendant's guilty knowledge only in cases where the different thefts have been made from the same owner; but on the contrary we think there are cases, of which the one at bar is a fair example, in which the guilty knowledge of a defendant in the receiving of stolen property charged in the indictment to have been stolen, may be established by evidence of other receivings from the same thief, although in each case the property may have been taken from a different owner. This conclusion requires the affirmance of the judgment herein.

PARKER, Ch. J., GRAY, VANN and CULLEN, JJ., concur; O'BRIEN and BARTLETT, JJ., dissent.

Judgment of conviction affirmed.

Supreme Court--Special Term-New York.

June, 1903.

THE PEOPLE EX REL. LACINA v. PATRICK LAVIN ET AL.

(41 Misc. 53.)

LARCENY-PENAL CODE, SECTION 528, SUBDIVISION 2-CITY PHYSICIAN CHARGING FOR FREE ANTITOXIN.

A New York physician is guilty of larceny, under section 528 of the Penal Code, where he administers to the child of a woman, knowing that she was able to pay for it, antitoxin delivered to him free of charge by the city, but only for treatment of a poor patient for whom payment of the same would be a hardship, and then charges the mother for the antitoxin and accepts payment for it from her.

HABEAS CORPUs and certiorari proceedings.

Facts sufficiently appear in the opinion.

House, Grossman & Vorhaus, for relator.

William Travers Jerome, District Attorney, for respondents.

TRUAX, J.: On the 15th day of June, 1903, writs of habeas corpus and certiorari were issued by this court directing the warden of the city prison to produce the body of A. M. Lacina, and to show by what authority he detained the said Lacina, and also directing the above-named Julius M. Mayer, a justice of the Court of Special Sessions of the city of New York, to mako full return to the said writ of certiorari, certifying to this court all proceedings had before him in reference to the detainer of the said Anton M. Lacina. The Hon. Julius M. Mayer has made his return, which shows that on the 13th day of June, 1903, the defendant Lacina was brought before him, sitting as a magistrate, charged with the crime of petit larceny, and that after reading the complaint and after hearing the witnesses

produced on behalf of the People to support the said charge, and believing that a crime had been committed by the said Lacina, he has held the said Lacina for trial in the Court of Special Sessions, and has admitted him to bail in the sum of $500, and, in default of the said bail, has committed him to the care of the warden of the city prison. The city of New York, through its department of health, for several years has been and still is distributing free of charge to poor people a drug known as antitoxin, which drug is used both as a preventive against and a cure for the disease of diphtheria. The department of health consigns this antitoxin, which is put up in small phials, to certain druggists in the city, and authorizes the said druggists, upon the presentation of the certificate hercinafter mentioned by any physician of the city, to deliver to the said physician, free of charge, for the use of a poor patient, one or more phials of the said antitoxin, One of these druggists to whom such a consignment was made by the department of health, acting for the city, is Charles F. Zinckgraf, at the corner of Sixty-seventh street and Third avenue, city and county of New York. On the 9th day of June, 1902, the defendant Lacina, who is a practicing physician in this city, was called in to attend a child of one Emma Horner, of this city. The defendant diagnosed the case as one of diphtheria. He informed Mrs. Horner that it would be necessary to inject antitoxin into the child; that he would have to purchase the antitoxin; that it would cost $3, and Mrs. Horner agreed to pay the sum of $3 for the antitoxin. It is admitted that the defendant then went to the said Zinckgraf, the druggist aforementioned, and obtained from him three phials of antitoxin, which was at that time the property of the city of New York, and which three phials are the phials of antitoxin which was injected into the body of the child of the said Emma Horner. The evidence shows that for this antitoxin the defendant received the sum of $9. This antitoxin was obtained by the doc