law declares to be prohibited to any person to use. It was therefore, not necessary as a matter of pleading or in any logical sense of a declaration of the crime to set forth what were the specific means, unlawful in themselves, which the defendant advocated in the article which he published. This seems quite certain to me and to almost exclude doubt. Besides a review of these which are alleged as principal defects in the conduct of the trial I have reviewed the case in its entirety, with a view to determining whether, upon the whole record, the issue was fairly presented, having an eye to the rights of the defendant to be legally tried for a crime, and have concluded that, upon the whole case, the result was almost imperative upon the evidence presented.

denied.

Motion for certificate of reasonable doubt

(1) LARCENY CONVICTION CANNOT BE SUSTAINED ON CONFESSION ALONE. A conviction for larceny cannot be sustained on the confession of the defendant, but there must be independent proof of the fact that a larceny was committed in order to comply with section 395 of the Code of Criminal Procedure.

(2) SAME FAILURE TO EXCEPT TO RULING ON MOTION TO DISMISS COMPLAINT AT CLOSE OF PEOPLE'S CASE.

The failure of the attorney for the defendant to except to the court's denial of his motion to dismiss the complaint at the close of the People's case was immaterial and could not deprive the defendant of his right to have the judgment reversed for a failure to comply with the statute.

APPEAL by the defendant, Joseph Krauss, from a judgment of the Court of Special Sessions of the City. of New York, rendered on the 17th day of January, 1918, convicting him of the crime of petit larceny.

On January 25, 1918, sentence was suspended and the defendant placed on probation.

Joseph H. San of counsel (Joseph W. Ferris with him on the brief), for the appellant.

Robert S. Johnstone of counsel (Robert D. Petty with him on the brief; Edward Swann, District Attorney), for the respondent.

PAGE, J.:

The defendant, a boy of seventeen years of age, was in the employ of Stern Brothers, a department store in the borough of Manhattan, city of New York. He was charged with the larceny of a vanity box alleged to be of the value of one dollar. The entire evidence given in the case related entirely to a confession alleged to have been made by the defendant and consisted of the testimony of Eugene Orth, who was a store detective employed by Stern Brothers. At the conclusion of the People's case the defendant's counsel moved to dismiss. Upon the denial of the motion the defendant rested without offering proof, and renewed his motion on the entire case to dismiss the complaint. The court, without formally passing upon this motion, found the defendant guilty, Justice McInerney dissenting and voting to acquit. The defendant's counsel failed to take an exception to the denial of his motion and to the implied denial by the court's giving judgment. The district attorney makes a point of this failure in his brief, but to my mind this is immaterial because the conviction is based entirely upon the alleged confession of the defendant, without additional proof that the crime charged had been committed as

required by section 395 of the Code of Criminal Procedure. The law in this state is very clear, and has been thus stated by the Court of Appeals in a more recent case than those cited by the district attorney or counsel for the defendant: "There must be evidence in addition to the confession to prove the corpus delicti, but when, as in this case, the corpus delicti is proved by independent evidence, and the defendant has voluntarily confessed his guilt, a case for the jury is made out, * *. In this state the statute referred to above (Code Crim. Proc., § 395), has put at rest any uncertainty that may have existed upon this subject and codifies the rule that there must be proof in addition to the confession as to the corpus delicti." (People v. Roach, 215 N. Y. 592, 600.)

*

This rule was enforced in this department in People v. Gillman (161 App. Div. 920), in which the court said: "Section 395 of the Code of Criminal Procedure provides that the confession of a defendant is not sufficient to warrant his convietion, without additional proof that the crime charged has been committed.' To apply that section to this particular case it was necessary, to warrant a conviction, that the fact of the larceny should be proven by evidence aliunde the defendant's confession. No such proof is shown by the record."

In this latter case it is true that the defendant took the stand and denied both the confession and the commission of the crime, but an examination of the opinion will show that this incident, which might distinguish that case from the case under consideration, was given no effect, and the judgment of conviction was reversed solely upon the ground that there was no proof of the larceny except the alleged confession of the appellant.

We have examined the cases cited by the district attorney and many of those cited in People v. Brasch (193 N. Y. 46), relied upon by the district attorney. But in all those cases there were facts and circumstances proved strongly tending to show the commission of a crime outside the confession. In People v. Brasch the defendant had been convicted of the mur

der of his wife, who had died from drowning. There was no proof that she did not jump or fall into the water, and there was no eye-witness to the occurrence; her body was found in the canal; there were no signs of bruises on her body or other evidence of violence being used toward her. But it was proved that the defendant left certain people and went to the house where his wife was staying, and that they left there together and that within a short time thereafter the defendant returned to the people whom he had left. It was further shown that he had a motive for killing her, and that his conduct was wholly inconsistent with his wife having been accidentally drowned while in his company, and these additional facts, taken with the confession, were held to be sufficient. But in the case under consideration there is no evidence that a vanity box had been stolen. The witness Orth testified that he had not seen either one of the two packages that he found in the defendant's house before he found them there, and did not see anybody take those two packages, and that the only thing he could tell the court is what the defendant said to him.

In my opinion the evidence was entirely insufficient, and the judgment of conviction should be reversed and a new trial ordered.

CLARKE, P. J., LAUGHLIN, DOWLING and MERRELL, JJ.,

concur.

Judgment reversed and new trial ordered. Settle order on

notice.

SUPREME COURT-SPECIAL TERM

NEW YORK.

May, 1919.

PEOPLE EX REL. ISIDORE KOPLITZ ET AL v.
WARDEN.

(112 Misc. 598.)

HABEAS CORPUS-WHEN WRIT DISMISSED JURISDICTION-CRIMINAL LAW-INDETERMINATE SENTENCE-PAROLE COMMISSION LAW (LAWS OF 1915, CHAP. 579, AS AMENDED IN 1916), § 9- PENAL LAW, §§ 720, 1937.

The judges of the Court of General Sessions of the city of New York and the justices of the Court of Special Sessions therein have power under section 9 of the Parole Commission Law (Laws of 1915, chap. 579. as amended in 1916) to commit persons under indeterminate sentence to penitentiaries, etc., and section 1937 of the Penal Law is not applicable to persons sentenced by either of said courts under the provisions of the Parole Commission Law. So held on discharging writs of habeas corpus where in one instance the relator is held by virtue of a judgment of said Court of Special Sessions on his conviction for an attempt to commit petit larceny and in the other instance the relator is held by virtue of a judgment of said Court of General Sessions on conviction of an attempt to commit grand larceny in the second degree.

The claim of another relator who upon his conviction in said Court of Special Sessions for the misdemeanor of keeping a disorderly house was given an indeterminate sentence which may last three years, that the court, being without power to impose a definite sentence of three years, it was without power to impose said indeterminate sentence, is without merit.

Where another relator convicted in said Court of Special Sessions of annoying persons in a public place by offensive and disorderly acts which are made a misdemeanor by section 720 of the Penal Law, for which no punishment is prescribed thereby and of which said court had jurisdiction, the writ in his ease will be dismissed and the prisoner remanded.

HABEAS CORPUS proceedings.

Isidore Koplitz, Victor Holt, Harold Joyce and Morris Liftman, in person, for writ.