People v. Rudowsky

This is an appeal from a conviction of grand larceny in the first degree. It was claimed by the prosecution that the defendant feloniously abstracted the sum of $1,150 from the pocket of the complainant.

The proof was wholly inadequate to establish defendant’s guilt. Neither the complainant nor his wife was able to *484swear that defendant had taken the money. The most that they could say was that the defendant stood next to the complainant in the subway car from One Hundred and Tenth street to One Hundred and Sixteenth street; that the defendant had a grip or valise and pushed complainant with it. Neither saw the defendant put his hand into complainant’s pocket. The prosecution relied upon the testimony of the complainant that he had the money when he got on the train at One Hundred and Tenth street and missed it at One Hundred and Sixteenth street, and asks that the inference be drawn that defendant took it. The circumstances relating to the possession of the money by complainant before the alleged loss are so unlikely as to suggest grave doubt as to whether he really did have it on his person as claimed. There was no reason given why he should have had the money with him at the time. He was then on the way to see a friend and it was not shown that any transaction with the latter was contemplated. Why the complainant should carry over $1,000 in his pocket from Friday till Monday is not satisfactorily explained. The story is highly improbable.

The conclusion reached makes it unnecessary to pass upon the affidavits submitted by the defendant on the motion for a new trial, for in this case the reversal of the judgment of conviction necessarily carries with it a reversal of the order denying said' motion. However, we feel called upon to say that the statements sworn to on the application and which tend to show a conspiracy to obtain a conviction of the defendant are most serious and should be made the subject of thorough investigation by the district attorney.

The judgment and order should be reversed and a new trial granted.

Clarke, P. J., Dowling, Smith and Page, JJ., concur.

Judgment and order reversed and a new trial ordered. Settle order on notice, j