#### PEOPLE v. GILLETTE.

(Supreme Court, General Term, First Department.

March 16, 1894.)

Larceny—Evidence.

On a trial for larceny it appeared that about three hours after defendant examined the goods alleged to have been stolen, which were exposed for sale, it was discovered that they were gone. When defendant was arrested he attempted to escape. The goods were never found or traced to the possession of defendant, and it appeared that other persons had been in the room where the goods were on the day of their disappearance. *Held*not sufficient to sustain a conviction.

Appeal from court of general sessions, New York county.

Harry Gillette was convicted of grand larceny in the second degree, and sentenced to imprisonment in the state prison at hard labor for four years and nine months, and from the judgment of conviction, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Alfred Pagelow, for appellant.

John D. Lindsay, for the People.

FOLLETT, J.

The defendant was jointly indicted with Charles C. Burt, and charged with having stolen, on the 26th of May, 1893, with force and arms, a bracelet of the value of $300 and a finger ring of the value of $150, the property of the Charity Organization, a domestic corporation. The defendant demanded and received a separate trial, and was found guilty. On the date mentioned, the Charity Organization occupied rooms on the third floor of No. 105 East Twenty-Second street, in the city of New York. At this time the organization had at its rooms, on exhibition and for sale, a collection of pottery, vases, crockery, antique jewelry, and other articles, called the “Holly Collection.” On the day in question a lady was in charge of the room and the articles therein from about noon until 4 o’clock in the afternoon, when she went home, and the room and its contents were left in the charge of her sister, who continued in control until about 6 o’clock in the afternoon, the hour for closing, when, as she was placing the jewelry in the safe, she noticed that the bracelet and ring were gone, and she immediately informed the secretary of the society. Shortly after 3 o’clock in the afternoon, the defendant and Burt entered the room together, examined the pottery, and were shown the bracelet and ring. They remained in the room from 7 to 15 minutes, and then left without having purchased anything, and walked rapidly through the hall, as one of the witnesses testified. In June (the date not appearing) Gillette and Burt were arrested and taken to the police headquarters, and then to a photographer, and, while in his rooms, the defendant attempted to escape. The bracelet and ring were never found, nor traced to the possession of Gillette or Burt. The fact of the most probative force which tends to criminate the defendant is his attempt to escape, but this is hardly sufficient to justify the conviction under the cir*102cumstanees of this case. Between the time when the defendant entered the room and when it was closed two painters were employed therein, and two or three persons entered and left, but the two sisters testified that the jewelry was not again removed from the cases in which it was kept. Without entering into a minute analysis of the testimony, we are of the opinion that it is insufficient to justify a conviction, and that, unless further incriminating facts can be proved, the defendant should be discharged. The judgment should be reversed, and a new trial granted. All concur.