People v. Jenman ( 1947 )

The proof, albeit circumstantial — consisting of evidence of defendant's possession of the tool used in forcing entry into the burglarized premises (People v. Wilson, 7 App. Div. 326, 333, affd. 151 N.Y. 403; People v. Larned, 7 N.Y. 445, 447, 452;People v. Weiss, 367 Ill. 580, 587; Wilborne v.Commonwealth of Virginia, 182 Va. 63, 66) and of evidence of his presence falsely denied, near the scene of the crime (People v. Deitsch, 237 N.Y. 300, 303; People v. Gorski,236 N.Y. 673; see, also, People v. Kress, 284 N.Y. 452, 466) — is exceedingly clear and convincing and establishes guilt beyond any doubt.

It may not be overlooked, as remarked in a capital case several years ago, that "Errors which loom large to a judge, learned in the law and trained to administer justice in strict accordance with the law, may be scarcely visible to the lay juror." (People v. Buchalter, 289 N.Y. 181, 224-225, per LEHMAN, Ch. J.) So, here, even were we to assume the existence of error — to my mind highly debatable — we are commanded to disregard errors and defects "which do not affect the substantial rights of the parties" (Code Crim. Pro., § 542). In the light of the record before us, it seems clear that this is not a case where the asserted error could have "turned the scale in the minds of the jury to the disadvantage of accused." (See People v. Slover, 232 N.Y. 264, 267.) Consequently, the ends of justice require an affirmance under the clear mandate of the statute (Code Crim. Pro., § 542).

The judgment should be affirmed.

LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur with LOUGHRAN, Ch. J.; FULD, J., dissents in opinion.

Judgments reversed, etc.