THE

NEW YORK CRIMINAL REPORTS.

Supreme Court-Appellate Division-First Department.

June, 1902.

THE PEOPLE v. WILLIAM WEISENBERGER.

(73 App. Div. 428.)

1. RECEIVING STOLEN GOODS-EVIDENCE-PROOF OF LIKE TRANSACTIONS PROXIMATE IN TIME.

Defendant, a licensed pawnbroker, was indicted for receiving stolen goods from one Hess, who stole the goods. Hess testified that defendant, some months before buying the goods in question and at the time of selling other stuff, agreed to buy "anything that comes along no matter what it is," and they had an understanding that if at any time there was anybody in the pawn shop that "looked suspicious" Hess was to say that "these were clothes from the cleaners, let me have a dollar and a half." After Hess had, without objection, testified to selling stolen property to defendant on several occasions prior to and including the date charged, the People, over defendant's objection, were allowed to show that at different times, within about three weeks thereafter, Hess sold stolen goods to the defendant, and that on one occasion when Hess claimed to have seen a detective and to have gone through the form agreed upon between him and defendant in the event of such a contingency. Held, that the evidence was competent, as it was sufficiently proximate in time and tended to show guilty knowledge on the part of the defendant. 2. SAME.

Held, further, that the guilt of the defendant was so clearly and satisfactorily established that the reception of this evidence, even if incompetent, did not require a reversal of the conviction.

3. TRIAL-REQUEST TO CHARGE AS TO TESTIMONY OF PARTICULAR WITNESS. The court is not required to analyze and separate the evidence and say to the jury unless they believed the testimony of a certain witness or witnesses they must render a verdict in a particular way.

APPEAL by the defendant, William Weisenberger, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, in favor of the plaintiff, entered in the office of the clerk of the said court on the 11th day of April, 1901, upon the verdict of a jury, convicting him of the crime of receiving stolen goods, knowing the same to have been stolen, under section 550 of the Penal Code, and also from an order entered in said clerk's office on the 11th day of April, 1901, denying the defendant's motion for a new trial made upon the minutes.

James W. Ridgway, for the appellant.

Howard S. Gans, for the respondent.

LAUGHLIN, J.: The defendant was indicted, under section 550 of the Penal Code, for having received stolen property on the 14th day of March, 1900, knowing the same to have been stolen. The property described in the indictment was two pairs of trousers, two coats, one feather boa and one finger ring. It was shown by competent evidence that the property was owned by one Alfred O'Connor, whose house one Harry Hess burglarized about three o'clock in the afternoon on the 14th day of March, 1900, taking the property in question which was found in the possession of the defendant, a licensed pawnbroker, by the police, on the 27th day of April, 1900, in searching his pawn shop under a search warrant. This, however, was not

sufficient to warrant the conviction of the defendant. The People were also required to show the criminal intent on the part of the defendant in receiving the chattels with knowledge

that they were stolen. (People v. Ray, 36 App. Div. 389; People v. Schooley, 149 N. Y. 99.)

Hess, who had committed the burglary, testified on behalf of the People, and his evidence, if sufficiently corroborated under section 399 of the Code of Criminal Procedure, satisfactorily shows this remaining essential fact; and, although it was controverted by the testimony of the defendant, the facts and circumstances are such as to amply support the verdict of the jury. The testimony of Hess is to the effect that in the month of November, 1899, when he started "to do business" with defendant, after having been in defendant's pawn shop two or three times, he said to defendant, "I often get this here stuff," and asked if defendant would "stand" for it, to which he says defendant replied, "Yes, I will stand for anything that comes along no matter what it is;" that from that time to the fifth of April thereafter he had a series of transactions with the defendant by which he sold to the defendant property which he had stolen, consisting of jewelry, silverware and clothing, receiving in the aggregate about eight hundred dollars in money therefor; that immediately after burglarizing O'Connor's house he took the property to defendant's pawn shop, which was only about a block away, and threw it on the counter, saying: “Here is some more of the same old graft, Wesy;" that the defendant gave him fifteen dollars for the clothes and about twelve dollars for the ring; that he and the defendant had an understanding that if at any time when he came there was anybody in the pawn shop that "looked suspicious," he should say, "these are the clothes from the cleaners, let me have one dollar and a half;" that in the month of January, 1900, when he entered the defendant's shop with some stolen property, Officer Day came in and the defendant nodded his head "as much as to go out," and he went out but saw the detective grab for something; that he came back after the officer left and the defendant told him the officer wanted to get the "stuff" but that he did not succeed.

In this last transaction Hess is substantially corroborated by Officer Day.

Substantially all of the property to which 'Hess' testimony relates was found in the defendant's possession at the time the officer executed the search warrant and identified by the owners who were then present, and it has been shown by their testimony that it was stolen. The defendant's books did not show the full names and addresses of the pawners or the rate of interest charged as required by law. In testifying in his own behalf the defendant attempted to explain that this omission was to avoid his being imposed upon by people claiming to have lost their pawn tickets. The coats were entered in the defendant's pawn book as having been pawned by "Williams" on March fourteenth with other property identified as O'Connor's but not included in the indictment; and the trousers were entered as pawned on the same day by "Rogers." The pawn

book also showed a cape and bag which were stolen from O'Connor as pledged on March fifteenth under the name of " O'Neil." The boa was found in a box in which was a muff with a ticket showing a pawn number and marked "Potter," and the pawn book showed that pawn number as property pledged on the nineteenth of April. The pawn book was in defendant's handwriting and he gave no explanation of the manner in which or from whom he obtained the property, except that he denied ever having seen or had any transactions with Hess. He testified that he was familiar with the law requiring pawnbrokers to keep the names and addresses of the pledgors together with the amount of the loan and rate of interest, and it was unlawful for a pawnbroker to purchase second-hand property offered to him as a pledge or pawn, or to engage in second-hand business; and knew that it was the practice to give the pawner a pawn ticket and to attach a coupon with the address of the pawner to the pledge, and in case of stolen property where the thief was not found or convicted he knew it was the practice of pawn