facts proved it was not a necessity because deception had been practiced and receipt of the money concealed and the share belonging to the complainant actually appropriated by the defendant, and that the length of time which had elapsed from its receipt to the defendant's interview with his client, together with the fact of the actual appropriation by the defendant permitted the jury to find, if it saw fit, a guilty intent on the part of the defendant.

We think the court's ruling in this regard was correct. The same question was considered by this court in People v. Birnbaum, 114 App. Div. 480, 20 N. Y. Crim. 295. In that case an attorney who was entitled to one-half the recovery settled the case of his client for $2,000 and falsely represented to her that it had been settled for only $1,300. In his opinion in that case Mr. Justice LAUGHLIN said: "On the facts here presented a demand therefor by the client upon the attorney and refusal upon his part to pay would have completed the crime. She was deprived of making a demand by his concealment of the fact that he still retained some of her money and by assuring her that he had fully accounted."

The court broadly charged the jury that the complainant was entitled to only $250 of the $500 and that the defendant came lawfully into possession of the complainant's share and did not need to keep the identical money which he received to pay over to her, but could mingle it with his own provided he had remaining $250 with which to pay her.

The question of necessity for demand was raised by counsel for the defendant in various forms and by many requests to charge. We do not deem it necessary to discuss them in detail further than to say that in view of the deception proved to have been practiced by the defendant upon his client respecting the receipt of the money, and his confession that he had used it for his own purposes and was unable to repay it, and the length of time which elapsed between its receipt by him and

inquiry concerning it by the complainant and continued concealment of the fact of collection, we do not deem failure to prove demand fatal to the conviction of the defendant.

At first blush some of the defendant's requests to charge with respect to guilty intent might seem to have been improperly refused. In his main charge the court told the jury that they must find that the defendant had used the money for his own purposes. After various requests respecting intent had been made and various responses made by the court, the defendant's counsel finally asked the court to charge that guilty intent, unless coupled with some overt act, could not constitute the crime of larceny. To this the court responded that he had all along assumed in charging as to intent that the defendant had used the money for his own purposes. In view of the charges made and this explanation of the court the jury could not have understood that the court intended to instruct them that a guilty intent, unaccompanied by any overt act, would make the defendant guilty of the crime charged against him. What the jury did understand was that notwithstanding the defendant may have appropriated the money to his own use, still it must have been with a guilty intent in order to make him guilty of any crime.

It is unnecessary to discuss further phases of the case, but only to say that upon a careful examination of the record we are convinced that the defendant was proven guilty of the crime charged against him and given a fair trial, and that there were no errors committed which call for a reversal.

The judgment of conviction should be affirmed.

PATTERSON, P. J., LAUGHLIN and SCOTT, JJ., concurred; MCLAUGHLIN, J., dissented.

MCLAUGHLIN, J. (dissenting):

The court, in its main charge, instructed the jury that if they believed "that this defendant, when he collected that

money, at any time from the time he collected it up to the time of his indictment, did not intend to deliver the proper share to the complaining witness, then he is guilty of larceny as alleged, and your verdict will be guilty." At the conclusion of the charge defendant's counsel requested the court to charge the jury that no matter what the defendant's intent "may have been, that he had a right to the possession of the money until the minds of the parties met as to the amount to which each was entitled." Also: "That unless there was a deception practiced upon the complaining witness a conviction cannot be had, and the defendant would not be guilty of larceny until a demand was made for the sum due from him to his client."

And: "That unless the jury find, as a matter of fact, that there was deception practiced, they cannot convict. The defendant would not be guilty, no matter what his intentions were, unless a demand were made upon him." These requests were denied, and exception taken in each instance, and in declining the last one quoted the court further emphasized what he had said in the main charge as to intent, saying: "If the jury believe that between August, 1907, and January 18th, there was an intent on the part of the defendant to misappropriate that $250 to his own use and not turn it over to his client-if they find that that intent existed, they may convict. And it was not neces sary, to constitute that crime, that he should be guilty of any deceit to his client that he had or had not collected it." Exception was duly taken to this instruction.

I am of the opinion that the court erred in giving the instructions which it did, and also in refusing to charge as requested. When the whole charge is considered, with the refusals to charge, it will be seen that the court, in effect, instructed the jury that in order to convict it was not necessary for them to find that a demand was made by the complaining witness for her share of the money, or that the defendant prac

ticed any deception in withholding the money from her; but they could convict if they found, between August, 1907, and January eighteenth, there was an intent on the part of the defendant to misappropriate the share of the complaining witness and not turn it over to her; in other words, the court charged the jury that if the defendant had an evil intent in relation to the money in question, he might be convicted, although he did no overt act in connection with its misappropriation.

As to whether the defendant's neglect or refusal to pay to the complaining witness her share of the money was due to a dispute between them as to the amount which she was entitled to receive as he says it was-was a close question of fact, and defendant's claim is corroborated to some extent at least by the attitude of the complaining witness at the trial when she declined to accept $250, though assured it would have no effect whatever upon the trial.

There being such a close question of fact, I think the court erred in instructing the jury as it did as to intent and refusing to charge as requested by defenedant's counsel, and for that reason the judgment of conviction should be reversed and a new trial ordered.

Judgment affirmed.

SUPREME COURT-APP. DIV.-FIRST DEPT..

Jan. 8, 1909.

THE PEOPLE v. RICHARD STANLEY et al.

(130 App. Div. 64.)

(1), BURGLARY-SECOND DEGREE EVIDENCE.

Evidence supporting a judgment convicting the defendants of the erime of burglary in the second degree examined, and held, that the jury was warranted in finding them guilty beyond a reasonable doubt. (2). SAME-CODE CRIM. PRO., SEC. 392-WITNESS UNDER TWELVE YEARS OF AGE.

Where the court is satisfied that a witness under twelve years of age has sufficient intelligence to understand the obligations of an oath, and allows him to be sworn and testify, the defendant is not prejudiced by a refusal of the court to allow an examination of the witness to ascertain his age.

APPEAL by the defendants, Richard Stanley and others, from a judgment of the Court of General Sessions of the Peace in and for the county of New York in favor of the plaintiff, rendered on the 7th day of April, 1908, convicting the defendants of the crime of burglary in the second degree, and also from orders denying the defendants' motions for a new trial and in arrest of judgment.

Abraham Levy of counsel (Harry C. Goldsmith with him on the brief), for the appellants.

Robert S. Johnstone, of counsel (Williams Travers Jerome, District Attorney), for the respondent.

CLARKE, J.:

On the 26th of December, 1907, a band of gypsies, the Dora Pearce camp, called Russian gypsies, although born in Mexico and speaking Italian, were encamped on the Boston Post Road in the borough of the Bronx. Two or three squares away an

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