#### The People of the State of New York, Plaintiff, *v.*John Erwin, Defendant.

(Supreme Court, New York Special Term,

December, 1900.)

Crimes — Certificate of reasonable doubt granted.

A certificate of reasonable doubt should be granted a person jointly indicted with another for, and convicted of, larceny and receiving stolen goods, where the record does not show that the parties had ever seen each other before the crime in which they were alleged to have participated as confederates, and where the evidence, relative to the party applying for the certificate, while calculated to arouse suspicion against him is not inconsistent with his innocence»

Motion for a certificate of reasonable doubt.

Asa Bird Gardiner, District Attorney, for plaintiff.

Amos H. Evans, for defendant.

Blanchard, J.

The defendant was jointly indicted with one Richards for larceny and receiving stolen goods. He was tried in the Court of General Sessions and convicted of grand larceny in the second degree, and a motion was made for a new trial and denied. He has duly appealed to the Appellate Division. In order to stay the execution of the judgment of conviction pending *502the appeal, he comes to a justice of this court and asks for a certificate of reasonable doubt. It was conceded on the trial that the value of all property involved was eighty-seven dollars, and the only question that need be considered on this application is whether the defendant was associated with Richards in the commission of the crime. It thus becomes necessary to examine the evidence in this case. The complaining "witness testified that Richards came into his store at Ho. 187 Division street, in the city and county of Hew York, after five o’clock in the evening of December 5, 1899, “ and bought some corned beef for 10 cents,” and tendered a two-dollar bill for change; that he gave Richards his change and put the bill on the safe behind the counter; that Richards left the store, and about two minutes later the defendant entered “ and bought -some bologna sausage for 5 cents,” giving a two dollar bib for change; that the defendant said he desired the change in paper money; that he went to his safe and got it, gave the defendant his change, and put his two-dollar bill on the safe; that the defendant left, and after a few minutes, or a couple of minutes, returned and stated that he had lost the change. Thereupon the complaining witness took some matches, searched for the change; and found a tenoent piece, which he gave to the defendant. This occurrence consumed a minute or a minute and a half. On going back into the store, he found Richards “ at the safe; ” Richards “ came from behind the counter,” and the complaining witness, noticing that the two two-dobar bills he had left on the safe were gone, seized him and demanded the four dollars. The complaining witness continues: *“*He tried to break out and drag me out into the street. Then I commenced to shout, to hober, and in this moment the defendant came and tried to interfere between me and this man; tried to separate us. The defendant pushed me away from the man that I had caught. * * * I had hold of both men * * * when the officer came and arrested both parties and took them inside the store.” On cross-examination, the witness was unable to state whether the defendant pulled him or the other man off. The foregoing is substantially all the evidence connecting the defendant with the commission of the crimes charged in the indictment, and I do not think it is sufficient to warrant the conviction. The acts of the defendant do not seem to be inconsistent with his innocence. His presence at the time and place mentioned, and his unsatisfactory explanation of it, the revolver found in his pocket, his *503purchase, the loss and recovery of his change, his efforts to separate, the complaining witness and Richards, are acts in themselves not inconsistent with innocence of the commission of the crime charged. They may well arouse suspicions against him, but they do not establish his guilt. They would be entitled to more weight if any connection whatever had been established between the defendant and Richards, but the record fails to disclose that they had ever known, or even seen each other. Motion for certificate of reasonable doubt is granted.

Motion granted.