Decision upon reargument, February 5, 1954.
APPEALS (1) from judgments of the County Court of Onondaga County (AMES, J.), rendered March 5, 1953, upon verdicts convicting defendants of the crimes of burglary in the third degree and grand larceny in the second degree, and (2) from orders which denied motions by defendants to set aside the verdicts and for a new trial.
Paul R. Shanahan for appellants.
Jesse E. Cantor, District Attorney (Arthur W. Wilson of counsel), for respondent.
The defendants-appellants were tried together and each was convicted in the County Court of Onondaga County for the crime of burglary third degree in connection with the alleged entry by the defendants into a building of the Dygert Construction Company in the town of Onondaga, New York, on October 11, 1952; the crime of grand larceny second degree in that the defendants allegedly stole from the said Dygert Construction Company building certain tools of the aggregate value of $250; the crime of burglary third degree in connection with an alleged entry by said defendants into a building of the Solomon Electric Company situate on the same site or plot of ground as the building of the Dygert Construction Company.
It is amply established by the evidence that sometime between 4:30 P.M. on October 10, 1952, and the morning of October 12, 1952, a burglary was committed in the building of the Dygert Construction Company and that certain tools consisting of an electric power hammer, electric saw and two electric drills were stolen therefrom. It is also amply established by the evidence that during the same period of time a burglary was committed in the building of the Solomon Electric Company and a large wrench was stolen therefrom. The stolen property was found
early on the morning of October 12th by police officers where it was concealed adjacent to a fence and some bushes on the north side of the highway in the 300 block of East Seneca Turnpike, Syracuse, New York.
There is no direct evidence as to the identity of the person or persons who committed the burglaries and the larceny, nor is there any direct evidence connecting these defendants with the crimes. The trial court charged the jury: 'It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal, where it is demonstrated that a burglary has been committed. Such unexplained or falsely explained recent and exclusive possession by defendants of the stolen property creates a presumption of fact that the defendants not only committed the larceny, but also the burglary.' There is no direct evidence that the defendants, or either of them, ever had possession of the stolen property. While the finding of such possession is implicit in the jury's verdict, such possession is founded upon circumstantial evidence.
It appears from the evidence that a Mr. and Mrs. Koch who reside at 328 East Seneca Turnpike, were awakened from their sleep at about four o'clock on the morning of October 12th when they heard a loud crash. They arose from their beds to investigate. They observed two men carrying objects across Seneca Turnpike to the northerly side thereof and coming from the direction of a location on the southerly side of the highway where it later developed that a tree had been struck by a car. These two men placed the objects which they were carrying in some shrubbery beside a fence on the northerly side of the highway substantially opposite the Koch residence. Mr. Koch telephoned to the police and after the car and the two men left the scene Mr. Koch went across the road to the spot where the men had placed the objects and found the wrench, later identified as the wrench taken from the Solomon Electric Company building. Police officers who came upon the scene shortly thereafter found the other objects, later identified as the tools taken from the Dygert Construction Company building. Further evidence firmly establishes a chain of circumstances sufficient to support an inference that the defendants are the men who were seen to place the stolen property beside the fence and shrubbery on the north side of East Seneca Turnpike.
The conviction of the defendants is predicated upon an inference of guilt arising from the unexplained recent and exclusive possession of the ...