(dissenting). Defendant appeals from a judgment of conviction of petit larceny rendered against her in the Court of Special Sessions upon a finding of guilty by two of the associate justices, the presiding justice dissenting and voting to acquit. Defendant was sentenced to the workhouse for thirty days but execution of the sentence was suspended. So far as the facts relating to the act of shoplifting were concerned, the conviction was secured on the uncorroborated testimony of store detectives.
The affirmance of this judgment of conviction seems to be based upon the premise that the defendant’s conduct was “ peculiar.” In our opinion, after a careful examination of the record, defendant’s conduct was “ peculiar ” only in the sense that no- one who was in fact a shoplifter would have acted as she did. It is wholly incredible that a shoplifter with criminal intent, who had successfully taken an article or articles from the counter of a store, and had concealed them in a bag on her person, would later extract the articles from their safe hiding place, take them out of the bag in the same store and display them to a salesclerk. Would any shoplifter after stolen articles had been twice safely secreted and twice taken from their hiding place display them again to a section manager of the department store from which they had been stolen?
Defendant’s actions were consistent with innocence rather than with guilt. A thief would remain as far as possible away from a section manager’s desk when the pilfered articles had been safely secreted on her own person. The story of the store detectives is inherently improbable and indicates that their apprehension of the defendant was based upon suspicion rather than proof. Defendant’s story is corroborated in part by the testimony of a disinterested witness, Mr. Baroff, and the testimony of her husband. Her character was vouched for by disinterested witnesses. There *759was no prior record or conviction of any kind. She stated, without contradiction, that she had been dealing with the same store for twenty years.
Defendant is a married woman of unblemished record, with two children, one twenty-two years and the other twenty-three years of age. On the sentence, the trial court indicated that, from the certificates of character received from many persons of standing and respect in the community, it was convinced of defendant’s excellent character and reputation.
In People v. Marcus (236 App. Div. 93), this court, by Martin, J. (now Presiding Justice), said:
“ We do not say we will not affirm a conviction obtained on the testimony of detectives. We do say, however, that when evidence presents such a grave doubt as is here shown or when an analysis thereof shows that it is incredible, we will not sustain a conviction on such evidence.
“ In addition, if good character amounts to anything, it should be given consideration in a case of this kind. Here, we have the case of a young woman of good character; never before convicted of any crime whatever, who has been employed as secretary in her present position for three years. She is certainly entitled to the benefit of the doubt as to her guilt which is the inevitable conclusion reached after reading the testimony in this case.”
On all the evidence and the reasonable inferences flowing therefrom, defendant’s guilt was not proved beyond a reasonable doubt.
The judgment of conviction should be reversed and the information dismissed.
Cohn, J., concurs.
Judgment affirmed.