for tickets which would be honored. He contends that his exception in each instance was well taken.

I am of the opinion that the ruling was proper and the evidence admissible. The defendant having offered hisself as a witness, the People had a right to prove specific facts which tended to discredit him or to impeach his moral character. (People v. Irving, 95 N. Y. 541; People v. Webster, 139 id. 84.)

In holding that the admission of this evidence was not error, the cases cited by the appellant have not been overlooked, but the distinction between evidence of previous arrest, indictments or accusations of wrongful acts and evidence of the commission of the wrongful acts themselves is apparent. It is only the admission of evidence of the former character that the authorities condemn; on the other hand, the rule is well settled. that acts showing disregard of law and contempt for the rights of others may be shown on cross-examination to affect the credibility of the witness and to impeach his moral character, and the questions here propounded tended to elicit evidence bearing on such subjects. (People v. Irving, supra; People v. McCormick, 135 N. Y. 663.)

The judgment of conviction is right and should be affirmed.

INGRAHAM and LAMBERT, JJ., concurred; PATTERSON, P. J., and HOUGHTON, J., dissented.

PATTERSON, P. J. (dissenting):

I dissent from the decision of the majority of the court affirming the judgment in this case. The defendant was convicted of the crime of grand larceny in the second degree. There were two counts in the indictment, the first charging the defendant with feloniously stealing, taking and carrying away a finger ring of the value of $175, the property of one John Behrens. In the second count he was charged with having in his

custody as bailee the same property referred to in the first count, and with feloniously appropriating the same to his own use with the intent to deprive and defraud the said John Behrens of the same and of the use and benefit thereof. On the trial, the case was submitted to the jury upon the second

count.

I am of the opinion that the evidence is insufficient to sustain a conviction, in that it fails to show that the defendant retained the property with the intent to deprive and defraud the true owner of the same. The underlying facts of the case are plain. The defendant and John Behrens had negotiations respecting the sale by the latter to the former of a diamond ring. Those negotiations resulted in an arrangement by which the ring was to be delivered to the defendant. He paid five dollars in money and endorsed and delivered to Behrens a check of a third party for the sum of twenty-five dollars. At the same time two papers were signed by the defendant, in one of which it is provided that "The under-mentioned goods are consigned to you to be returned within

or upon demand. None of them are sold nor does the title thereto pass. Conditions and agreements not expressly herein included shall not be considered as part hereof. All risks are assumed by the con· signee. 1 14Kt. Solid Gold Tooth Ring Roman colored, set with solitaire diamond weighing 3-4 (less) 1-16 1-64 value 175." At the same time another paper was signed, termed a deposit agreement, and under which the defendant agreed to pay Behrens thirty dollars upon the execution of the paper, eight dollars on January thirteenth, and three dollars each week, beginning on January 15, 1906, until the sum so deposited amounted to one hundred and seventy-five dollars. The agreement then proceeded to state that: "It is further expressly agreed that if the first party (the defendant) at any time defaults any of said deposits, the second party (Behrens) may deliver to the first party articles, as near as may be, of the

same nature, manufacture and style as the chattels herein agreed to be delivered but reasonably worth the sums so deposited, and upon delivery thereof, this agreement shall be deemed fulfilled and satisfied, and it is further agreed that conditions and agreements not expressly included herein shall not be considered as a part hereof."

The transaction took place on the 5th of January, 1906. On January sixteenth, Behrens with his son, called on the defendant at his place of business and then said to him: “The Court requires me to make a personal demand upon you in the presence of a witness, and I now demand the return of this diamond ring," holding the memorandum in his hand at the time, and the defendant said: "All right, I accept your demand." Behrens testified that that was all that was said. "He did not give me my ring." In the meantime, and after the five dollars was paid and the twenty-five dollar check given, the defendant claims that he discovered that the diamond in the ring was not of the quality represented by Behrens when he sold it, and that thereupon he, the defendant, stopped the payment of the check. When the return of the ring was demanded by Behrens the defendant said: "All right, I accept your demand." He did not refuse, therefore, to give up the ring. He swore that he stated that he would give it up upon the five dollars and the twenty-five dollar check being returned. That is denied, it is true, by Behrens and his son, but criminal intent cannot necessarily be inferred from his mere neglect to return the ring. It had come into his possession lawfully, and Behrens expressly agreed that if the defendant made default in any of the deposits, he, Behrens, "may deliver to the first party articles, as near as may be, of the same nature, manufacture and style as the chattels herein agreed to be delivered, but reasonably worth the sums so deposited." This stipulation cannot be regarded as leaving it altogether optional with Behrens whether he would deliver to the defendant merchan

dise of the value of five dollars or of twenty-five dollars; but, at all events, the defendant might be justified in believing that before the ring was returned by him, he was entitled to something as an equivalent for the money he had paid on account of the transaction. He might well have believed that before the return of the ring could be exacted or compelled, Behrens ought to satisfy him in some way for the money paid on account. There is nothing in this evidence to indicate an original purpose on the part of the defendant to procure possession of the ring by fraud, artifice or deception, and its conversion subsequently with a felonious intent is not satisfactorily established.

I think the judgment should be reversed and a new trial ordered.

HOUGHTON, J., concurred.

Judgment affirmed. Order filed.

SUPREME COURT—APP. DIVISION-FOURTH DEP.,

March 13, 1907.

THE PEOPLE v. WILLIAM DIXON.

(118 App. Div. 593.)

(1). BURGLARY-THIRD DEGREE EVIDENCE.

It is error to allow a witness who has aided in a burglary to testify that he and the defendant committed other burglaries wholly disconnected with the crime in question.

(2). SAME.

Evidence of conversations between the defendant and the witness relating to other unconnected burglaries is not admissible to show an unlawful purpose.

(3). TRIAL-REMARKS BY COURT EMPHASIZING DISTRICT ATTORNEY'S ATTACK ON DEFENDANT'S ATTORNEY.

When the district attorney has stated before the jury that the defend. ant's attorney had made improper remarks and that the law which throws a mantle of protection around the defendant sometimes works injustice, it is prejudicial to the defendant for the court to emphasize the district attorney's remarks by stating that the defendant's counsel, if dissatisfied, has an objection and exception thereto.

(4). SAME.

It is prejudicial for the court, when the jury has been out all night without being able to agree, to state that if agreements cannot be had in that county it does very much to cause unrest in the administration of the law.

APPEAL by the defendant, William Dixon, from a judg ment of the County Court of Onondaga county, rendered on the 4th day of May, 1906, convicting him of the crime of burglary in the third degree, and also from an order bearing date the 4th day of June, 1906, and entered in the office of the clerk of the county of Onondaga denying the defendant's motion for a new trial.

Harley J. Crane, for the appellant.