App. Div.] First Department, March, 1906. ant pointed to a spot which the witness says he and his uncle no less than three times had examined. The defendant brought up all the jewelry, except a couple of small pieces. Everybody congratulated the defendant, and then he was told that the large diamond pin was missing, and Rosenthal, Jr., swears that the defendant said it was odd that that pin should not be found with the rest of the goods, as it was there. It was subsequently traced to a pawnbroker's office, and it sufficiently appears in the proof that the defendant took it there and pawned it in the name of "Kahn." Evidently all the articles mentioned in the indictment, with the exception, perhaps, of one or two very small ones and the large diamond pin, were recovered by or restored to the owner on the seventeenth of July. Two witnesses for the prosecution, namely, Krauch and Firneisen, police officers, corroborated the story of Joseph Rosenthal relating to the discovery of the "Y. P. C." pin in the pocket of the defendant's coat. Krouch's connection with the case began on the fifteenth of July. He testified that he was present when the small pin was discovered, and also that he had searched the place at which the defendant stated he found the other jewelry. He made the arrest of the defendant, stating to him that it was for stealing the jewelry at Rosenthal's. He asked the defendant if he ever owned a silver badge with "Y. P. C." on it, and the defendant said, "No." The defendant asked if he could talk with Joseph Rosenthal and was told he could. This witness then states the conversation. He says that the defendant asked Rosenthal, "what do you want from me?" and Rosenthal replied that he wanted "that three-stone pin that you took." The defendant said he did not take it. Rosenthal said, "Yes, you did. * I am not doing this for your sake, but I am doing it for your family's sake, and I want it." The defendant said, "The pin is all right." * * Then this officer remarked, The defendant said, "Well, "What do you mean, all right?" * * * the pin is pawned," and stated that he pawned it the day after the jewelry was found; that he kept the pin and pawned it in the name of "Kahn," and received $150. This witness also testified that he discovered at the pawnbroker's that it had been pledged on the eleventh of July, which is the day on which the larceny was committed as charged in the indictment. After the arrest this First Department, March, 1906. officer had a further conversation with the defendant. [Vol. 111 The court remarked that if the conversation did not relate to the transaction the witness should not narrate it. He testified that it related to jewelry which had been taken previously — a pair of earrings. Another witness, Firneisen, testified to a general search that had been made through the apartments for the jewelry. And still another, a detective sergeant (Granville), testified to a conversation with the defendant respecting the pawning of the diamond pin. He declared that the defendant said that he had pawned it on the eighteenth, but this witness discovered that it was actually pledged on July eleventh for $150 in the name of one "Kahn." The defendant, sworn on his own behalf, testified to the intimacy existing between young Rosenthal and himself, and the friendly relations between the two families. He also swore that he was a member of the "Y. P. C." club; that it was a school boys' club to which he at one time belonged, and that the badge found in the pocket of the coat was his property and that he had it in the coat pocket on the day it was found. He also testified that young Rosenthal never was a member of that club; that he had seen the box of jewelry a number of times; that July eighth was not the first time he saw it, but he did see it on that day; that he remained with Rosenthal up to the fourteenth of July; that on the morning after the night of the discovery of the disappearance of the jewelry young Rosenthal said to him that the box of jewelry was gone; that at the direction of the defendant young Rosenthal made out a list of the jewelry that was missing, and there was nothing on that list concerning the three-stone bar pin, and that he did not say anything about the pin being in that box; that young Rosenthal, in April, was at the defendant's father's house and had the pin with him; it was a Sunday afternoon, and he came to take dinner with the defendant's family; that young Rosenthal then produced the pin and said to a Mr. Levine, who was present, "Levine, I got a bargain for you. Here is a nice pin. Buy it." Levine said, "I haven't got any money just now." Rosenthal then said to the defendant, "Mike, won't this look nice for ma?" meaning the defendant's mother. The defendant replied, "I don't know. I will see what the folks say, and if they say I shall buy it I will consider it." The defendant testified that "a couple of days App. Div.] First Department, March, 1906. after" he bought the pin for his mother, and that she had been wearing it ever since, until it was pawned; that he agreed to pay Rosenthal $225 for it, and that his mother wore the pin very often when she went out; that on the eleventh of July his father came to his mother and asked her to let him have it; that he wanted to raise some money for the completion of a contract to do some work on a house on Madison avenue; that he, the defendant, pledged the pin at Simpson's for $150, and used a different name because he had never been in a pawn shop before and did not want his name used in such a shop. He claims to have paid $100 on account of this pin. He then testified to finding the jewelry and its delivery by him to young Rosenthal. He also swore that he was a member of the Young Potomac Cadets until 1898. Isaac Sekosky, the defendant's father, testified that young Rosenthal was a frequent visitor at his house and had been for a number of years coming there as a school boy friend of his son; that he remembered Rosenthal, Jr., coming to his house in the months of February, March, April, May and June, 1903, and on various occasions showing different kinds of jewelry and that he showed the diamond pin in question. The first time the witness saw it was in the latter part of April, 1903; his wife, daughter, son and a man named Levine were also present. Rosenthal, Jr., tried to sell it to Levine, who said he did not have the money to buy it and then he offered it to the defendant, saying, "Buy it for Ma." It was not bought on that day. Subsequently the defendant brought it home and said, "Mama, I bought that pin." It was a couple of weeks later. "My wife wore it after during the months of May and June. She wore it on Sundays and Saturdays when she used to go out. She wore it to a wedding." Hyman Levine, a witness on behalf of the defendant, also testified to the fact that Rosenthal offered to sell him a pin with three stones and he afterwards saw the pin on Mrs. Sekeson, the defendant's mother, in the house, as she went away to a wedding. Mrs. Sekeson, the mother of the defendant, testified to the offer of Rosenthal to sell the pin to Levine, who would not buy it, and that her son gave it to her in the early part of May. Sophie Sekeson, a sister, corroborates her mother and her father as to the offer of Rosenthal, Jr., to sell the pin to Levine and his subsequent suggestion to the defendant that the pin should be bought for his mother; and this First Department, March, 1906. [Vol. 111. witness recognized the pin on the trial and said she could not be mistaken about it; that her mother wore it on several occasions; that she so wore it at a wedding at Webster Hall; that Rosenthal, Jr., was there and that he went in the same carriage with her mother. Bertha Sekeson, the mother of the defendant, testified that she wore the pin at that wedding and that Rosenthal rode with her in the same carriage and that she had the pin on then. Witnesses were then produced on behalf of the defendant who testified concerning the "Young Potomac Cadets," and their testimony was to the effect that Rosenthal was not a member of that club, but that the defendant was. In rebuttal the prosecution introduced evidence as to the club badge or pin and that young Rosenthal was a member of the club. It was sought to identify the pin as belonging to the latter by the mark of solder which had been used in repairing it. Two witnesses, namely, Robert E. Rosenthal, the uncle, and Geneva Rosenthal, his wife, testified that the three-stone diamond pin was in the possession of the wife for several days in the early part of July; that she borrowed it and that it was returned before the eleventh day of that month. From whom it was borrowed, whether from young Rosenthal or from his father, does not appear. It is a noticeable circumstance that young Rosenthal in his testimony does not refer to the diamond pin ever having been out of his possession before the eleventh of July. On his direct examination he was asked specifically to state to whom, other than the defendant, he had showed that pin, and he made no reference whatever to the very important fact, if it be a fact, that his aunt had borrowed and used it at a time so near the day named in the indictment. From this general statement of the evidence respecting the ownership of the society or badge pin found in the pocket of the defendant's coat, and the conflict concerning the way in which the defendant became possessed of the diamond pin, which he pledged, it is easily seen that the jury might have found either way as to the guilt or innocence of the defendant; and if there were nothing further in the case to affect the verdict, we should not be inclined to disturb it. There was introduced in the case, however, an element which may have had great influence with the jury and may have inclined. App. Div.] First Department, March, 1906. them to pronounce the defendant guilty. That element is an alleged confession of the defendant that he had been guilty of larceny at an earlier date in taking a pair of earrings, the property of young Rosenthal's father. The record as to those earrings is curious. On the redirect examination of young Rosenthal, in answer to a question of the district attorney, he stated, "We missed a pair of diamond earrings in April." That was objected to and the court stated that it would sustain the objection unless the district attorney intended to connect it. Such intention was announced. The court was unable to perceive that the matter was material, but received the evidence subject to a motion to strike it out if not connected. Subsequently the same witness testified that the defendant told him after his arrest where the pair of earrings was. The court then sustained an objection to evidence concerning the earrings and the subject seems thereupon to have been dropped until the detective Krauch was examined. He, after testifying respecting the defendant's confession as to the diamond pin, stated that in conversation with the defendant reference was made to "another piece of jewelry which had been taken a pair of earrings." Again the court appears to have ruled out evidence of this conversation. On rebuttal Robert J. Rosenthal testified that he had had a conversation with the defendant on the nineteenth of July, and was asked whether he had heard any other conversation that took place between the defendant and any other person on that day or any day after that. His reply was in the affirmative, and he was asked what the conversation was. He swore that he said to the defendant, "There is a couple of pair of diamond earrings that have been missing." The defendant's counsel objected to any testimony of that character and asked that it be stricken out. The objection was overruled and an exception taken. Counsel for the defendant referred to the fact that all evidence of that character had been stricken out the day before. The witness testified that he said to the defendant, "If you pawned them for a smaller amount, why let us know about that and we will get them," to which the defendant responded, "If you will have me remanded I will see what I can do." Subsequently this witness saw the defendant again and testified that the defendant said, "I took them earrings and I made APP. DIV.- VOL. CXI. 32 |