The

stolen property knowing the same to have been stolen. evidence, on the contrary, tended to show that the defendant was a dealer in junk and that he bought metal in the form of ingots without ascertaining by diligent inquiry that the person selling or delivering the same had a legal right so to do, contrary to the provisions of section 1308 of the Penal Law. That it was for the crime last described of which the defendant was convicted, and not the ordinary receipt of stolen property with knowledge that it was stolen, is made evident by the court's ruling upon the defendant's motion to dismiss the ` information at the close of the People's case. This motion was based upon a lack of proof of the knowledge of the defendant that the property had been stolen. The assistant district attorney then asserted: "There doesn't have to be. The law says they must diligently inquire and find out whether they have the right to sell these things to junk dealers." The Court: "The Code prescribes just what the defendant must do when he purchases certain metal. He buys at his peril unless he makes such inquiry. The motion is denied." A motion was then made to dismiss on the ground of variance, and this was denied.

Upon the argument of this appeal the learned district attorney did not attempt to escape the conclusion that the defendant had been convicted under that portion of section 1308 of the Penal Law which forbids a dealer in or collector of junk to buy or receive any metal in the form of ingots, bars, etc., without ascertaining by diligent inquiry that the person selling or delivering the same has a legal right to do SO. His contention is that the conviction is justified under People v. Sullivan (173 N. Y. 122, 17 N. Y. Crim. 180); People v. Schermerhorn (203 id. 57); People v. Wolter (Id. 484); People v. Friedman (205 id. 164) and People v. Giusto (206 id. 67). Those cases held that under an indictment charging murder in the first degree in the common-law form the prosecution may establish that the killing was done with

premeditation and intent to effect the death of the person killed or that it was done in the commission of a felony without intent to kill. The distinction between those cases and the present case is that a killing of a human being under any of the circumstances mentioned constituted the crime of murder at common law. Therefore, having charged in the indictment murder in the common-law form, the prosecution was entitled to prove its commission in any of the methods recognized by the common law. The same rule, however, does not apply when the acts charged as a crime constitute a crime at common law, but the proof offered is of acts which did not constitute a crime at common law. This distinction, I think, is made clear in People v. Dumar (106 N. Y. 502, 8 N. Y. Crim. 263). The defendant in that case was indicted in the common-law form for grand larceny. The indictment charged that the defendant "unlawfully and feloniously did steal, take and carry away." The proof established that the crime of grand larceny was com mitted by obtaining the property in question by means of fa'e representations and a false writing. The Court of Appeals The indictment was held

held this to be a fatal variance.

be good at common law. The court, however, said at page 507: "Under the former system a substantial distinction was recognized between the crimes of larceny and false pretenses

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In order to constitute larceny there must have been a taking of person property against the will of the owner. The other offense could not be confounded with it. In either case the property may have been obtained by artifice or fraud; but if in one the owner intended to part with his property absolutely and to convey it to the defendant, but in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was, therefore, uniformly held that if a person, through the fraudulent representations of another, delivered to him a chattel intending to pass the property in it, the latter could not

be indicted for larceny but only for obtaining the chattel under false pretenses."

In the present case the crime charged in the information, receiving stolen goods knowing the same to have been stolen, was an offense at common law. (Bishop New Crim. Law, $699.) The offense of which the defendant has been convicted is purely statutory. The reasons for this legislation are clearly set forth in People v. Rosenthal (197 N. Y. 394, 399, 25 N. Y. Crim. 368). Section 1308 of the Penal Law treats generally of receiving stolen or wrongfully acquired property, but under its provisions the crime therein mentioned may be committed in two ways, one of which was recognized by the common law and the other was unknown to the common law. This leads us to the conclusion that the defendant has been convicted under an information which charged one state of facts as constituting criminally receiving stolen property while the proof was of a totally different state of facts which, by the Penal Law, also constituted that crime. The difficulty was that the crime as charged was not proved, and the crime as proved was not charged. (People v. Dumar, supra.)

The judgment of conviction should be reversed and a new trial ordered.

JENKS, P. J., RICH, BLACKMAR and KELLY, JJ., concur.

Judgment of conviction of the Court of Special Sessions reversed and new trial ordered.

GRAND LARCENY-EVIDENCE-TESTIMONY OF ACCOMPLICE-SUFFICIENCY OF

CORROBORATION.

On the trial of an indictment for grand larceny evidence given to corroborate an accomplice need not be sufficient in itself to prove the defendant's guilt in order to satisfy the requirement of section 399 of the Code of Criminal Procedure, nor need the corroboration extend to all the elements of the crime.

But there must be other evidence tending to connect the defendant with the "commission" of the crime; the other evidence must implicate the defendant in the guilty act.

On all the evidence, held, that the testimony offered as corroborating the accomplice did not tend to show that the defendant was connected with the commission of the crime, as each act testified to was entirely consistent with innocence, and did not, even in connection with the testimony of the accomplice, indicate guilt.

See note, Vol. 28, p. 180.

APPEAL by the defendant, James E. McPorland, from a judgment of the County Court of Queens county, rendered on the 17th day of June, 1918, convicting him of the crime of grand larceny in the second degree.

K. Henry Rosenberg, for the appellant.

William F. Ryan (Denis O'Leary, District Attorney, and Harry Van Alst with him on the brief), for the respondent.

BLACKMAR, J.:

This appeal presents the question whether an accomplice was corroborated by evidence which tended to connect the defend

ant with the commission of the crime. (Code Crim. Proc., $ 399.)

The defendant maintained a garage on Greenwood avenue, Richmond Hill, where he conducted an express business. Cleary, a liquor dealer, for lack of room in his own place, left with defendant on storage two barrels of whiskey. The testimony upon which the defendant was convicted was mainly given by Kender, who was employed by defendant occasionally as a helper. Kender testified that on the 15th of December defendant told him he was short of money and arranged with him to take two barrels of whiskey from the garage and sell them to a saloonkeeper named Max Gordon, whose place of business was on Jamaica avenue; that defendant scraped the serial numbers off the barrels and painted the heads white; that defendant broke the lock of the door of the garage in order to give it the appearance of having been burglarized; that after looking in vain for a wagon to take the whiskey over to Gordon's place, Kender, at defendant's direction, loaded the whiskey at night on an automobile truck owned by defendant, took the whiskey to Gordon's saloon and received from Gordon the sum of $140, leaving the truck in the street; that defendant came to his home in the morning, received the $140 and gave him $30 for his services. Shortly after the theft Kender left for Philadelphia, where he found employment, but soon returned to Brooklyn on foot and gave information of the connection of defendant with the commission of the crime.

The following evidence is relied on by the district attorney to corroborate the accomplice: 1. The testimony of Kender's wife that early in the morning of December 16th the defendant came to her house, told her that the automobile had been stolen, went with Kender into the kitchen, stayed there about ten mniutes, and left, and that after he left Kender gave her $25. 2. The testimony of the chauffeur, Scheffler, that Kender, in the defendant's presence, told him to back in the truck, and it was backed in alongside the two barrels of whiskey. 3. The