against whose character nothing can be said on this record, either to watch them steal the tin or, as hinted by the district attorney, to aid them in doing it.

We think the conviction a miscarriage of justice. It rests on suspicion light as air." The evidence was as matter of law insufficient to exclude reasonable doubt, and as this is a matter for the court to decide (People v. Ledwon, 153 N. Y. 10; People v. Gluck, 188 id. 167), the judgment of conviction should be reversed and the defendant discharged.

JENKS, P. J., MILLS, RICH and PUTNAM, JJ., concurred.

Judgment of conviction of the County Court of Rockland county reversed, and defendant discharged.

THE PEOPLE EX REL. CHARLES PRESSLER v. WARDEN CITY PRISON.

(109 Misc. 155.)

HABEAS CORPUS*-WHEN DISCHARGE ON WRIT OF, DENIED-WHAT SUFFICIENT TO JUSTIFY A WARRANT OF ARREST CRIMINAL LAW.

An information stating that two days before certain tools were found in premises that had been burglarized, they were sold to and were in the possession of the defendant, is sufficient to justify a warrant of arrest charging him with the burglary, and his discharge on a writ of habeas corpus will be denied.

HABEAS CORPUS proceedings.

Harry Kopp, for relator.

*See notes in Vols. 15, 152; 23, 55.

Harry E. Lewis (Harry G. Anderson on the brief), District Attorney, for respondent.

CROPSEY, J.:

The relator seeks discharge on a writ of habeas corpus. He is detained under a warrant issued by a city magistrate charging him with the crime of burglary. The contention is that the information is insufficient. This states, in substance, that shortly after a burglary had been committed certain tools. were found in the burglarized premises, and that those identical tools were in the possession of the accused two days before the burglary, having been sold to him at that time.

It cannot be questioned that proof of the facts stated in the information would be admissible against the accused. (People v. Lagroppo, 90 App. Div. 219, 227, 228, affd., 179 N. Y. 126, 18 N. Y. Crim. 426; People v. Del Vermo, 192 id. 470, 480, 481, 23 N. Y. Crim. 1; Commonwealth v. Scott, 123 Mass. 222, 229, 237; Lawson Presump. Ev., rule 106.) In fact, relator's counsel does not contend that such proof would be inadmissible, but urges that it would be insufficient to justify a conviction. That, however, is not the question which the magistrate must decide. But even if it were, such proof would be sufficient to warrant a finding of guilt. If an accused were shown to have had conscious and exclusive possession of certain articles shortly before a burglary was committed and those identical articles were found in the burglarized premises directly after the crime was committed, and there was no further proof, a jury or the trier of the facts would be justified in inferring and finding that they had been left there by the person in whose possession they had previously been shown to be. (See People v. Giordano, 213 N. Y. 575, 579, 582, 32 N. Y. Crim. 467.) Wigmore, in his Principles of Judicial Proof, at pages 164 and 165, quotes from Burrill's A Treatise on Circumstantial Evidence the following:

"The participation of the accused in the crime proved to

have been committed is shown by those physical facts or appearances which connect him with it; affording so many natural coincidences, harmonizing with the supposition of his guilt. They are, in other words, the traces, marks, or indications, more or less distinct and impressive, of the presence of a particular criminal agent; and may be enumerated in

the following order:

*

*

* * *

*

"4. Objects left at the scene of crime, by the supposed offender, being identified as belonging to him or previously seen in his possession. Of this description of traces of the person are the instruments of the crime themselves; such as the pistol, razor, knife or hatchet used in committing a murder; articles of dress, such as a hat, a glove, a neck-cloth, a cloak, and the like. These furnish obvious means of identifying the criminal."

In Lawson's Law of Presumptive Evidence the following rule (108) is laid down: "Possession by the accused of the means for committing the crime charged against him may raise a presumption of his guilt." And the author gives various illustrations in support of the rule. (See also Underhill Crim.

Ev. [2d Ed.], § 423.)

Where property shown to have been in premises which were burglarized was shortly after the commission of the crime found in the conscious and exclusive possession of the accused, such proof justifies the inference and hence the finding that it was taken by him and that he committed the crime in question. And no other proof is necessary. (Knickerbocker v. People, 43 N. Y. 177; Stover v. People, 56 id. 315; People v. Weldon, 111 id. 569; People v. Wilson, 151 id. 403, 12 N. Y. Crim. 116; People v. Friedman, 149 App. Div. 873.)

The facts alleged in the information in the present proceeding make out a stronger case against the accused than in the cases last cited. In those, the possession of something which

had been taken from the scene of the crime was held to warrant the inference that the possessor had taken it. In the present

case, the thing found at the scene of the crime was shown to have been in the possession of the accused shortly before the offense was committed; and the presumption that naturally follows that a situation shown to exist continues gives added weight to the proof here.

The writ is dismissed and the prisoner is remanded.

Writ dismissed.

SUPREME COURT-APPELLATE DIVISION.

SECOND DEPARTMENT.

October 3, 1919.

THE PEOPLE v. EDWARD BISHOP REDMOND.

(189 App. Div. 96.)

PERJURY-TESTIMONY GIVEN ON INFORMATION OBTAINED FROM OTHERSFAILURE ΤΟ SHOW CRIMINAL INTENT- -VERDICT AGAINST WEIGHT OF EVIDENCE.

To constitute the crime of perjury not only must the testimony be false but the witness must know it to be false and must testify willfully. Although a witness testified to facts as of his own knowledge, which he afterwards admitted he had learned from the statements of others, so that it was equivalent to a statement of what he knew to be false by virtue of section 1626 of the Penal Law, nevertheless he cannot be convicted of perjury without proof that the testimony was willfully given, i. e.. with a criminal intent. If the witness believed what he had been told, his testimony, although false, was not willfully so, and, therefore, not perjury.

Evidence examined, and held, that a verdict convicting the defendant of perjury was against the weight of evidence. JAYCOX, J., dissented.

REARGUMENT of an appeal by the defendant, Edward Bishop Redmond, from a judgment of the County Court of Kings county, rendered against him on the 27th day of November, 1916, convicting him of the crime of perjury, and also from

an order denying defendant's motion for a new trial and an arrest of judgment.

A. F. Van Thun, Jr., for the appellant.

Ralph E. Hemstreet, Assistant District Attorney (Harry E. Lewis, District Attorney, and Harry G. Anderson, Assistant District Attorney, with him on the brief), for the respondent.

BLACK MAR, J.:

In the June term of 1917 the judgment of conviction herein was reversed by this court for an error in the charge, and a new trial ordered. (179 App. Div. 905.) At the same time, on motion of the People, the order of reversal was resettled to recite that the reversal was on law only, as the court had not reached an agreement on the facts. (179 App. Div. 127.) The People appealed to the Court of Appeals and that court, in January, 1919, decided that an appeal to it would not lie unless it affirmatively appeared in the body of the order that the Appellate Division had exercised its power to review the facts and that, being satisfied with the judgment in that respect, the reversal was ordered for errors of law only. The appeal was dismissed but without prejudice to a new application to the Appellate Division for the amendment and resettlement of the order by stating in it its decision upon the weight of evidence. (225 N. Y. 206.) Such application was thereupon made; and as two of the justices who sat when the court passed on the case were no longer members of the court, a reargument of the whole case was ordered. It, therefore, became and is incumbent on us to consider both the facts and the law.

The defendant was indicted and convicted for perjury. In an action for partition pending in the Supreme Court, there was an issue of the legitimacy of Beatrice Barker, a defendant in that action. That issue in turn depended on whether her mother, now named Estelle Dorgeloh, was married to one