The evidence shows that one Michael Holzer, of Long Island City, securely closed his shoe store on the night of Saturday the 13th of Yovember. On Monday morning the door showed evidence of having been broken in, and a large portion of the shoes was gone. The shoes were subsequently in part found in a pawn-shop in Long Island City. The three defendants were convicted of the crime, and this appeal presents the record of the trial. The proof of the burglary and larceny is not questioned, but certain errors are assigned as calling for a reversal, and it is also urged that there was an insufficiency of evidence to authorize a conviction. The first error arises, as is claimed, under the following circumstances: One John Boyle had been a witness before the grand jury, and had testified against the other defendants. He was called again by the people on the trial, and then testified that what he had said before the grand jury was untrue. The people were manifestly taken by surprise, and questioned him particularly as to the *71details of his evidence before the grand jury, all of which he denied. The counsel for the accused objected to this examination of the people’s witness by the district attorney, and the minutes of the grand jury were handed to the judge to show him that the witness was an unwilling witness. The examination then stopped. The minutes were not needed to show that the witness was testifying falsely on the trial, or had done so before the grand jury. The examination went no further than was justifiable, under the circumstances. Bullard v. Pearsall, 53 N. Y. 230.
The' next error is one of proof. The people called a witness, one John Kelley. He testified that the three convicted defendants were all at a room in Long Island City on the Saturday night the store was robbed; that he (Kelley) lay down and went to sleep; that when he woke up two of the appellants, Thomas Kicker and Matthew O’Neil, came in. This was about three o’clock Sunday morning. Kelley then went with them, and on the corner of Jackson avenue and Tenth street they found Thomas Kicker, O’Neil, and Boyle, and they had about 60 pairs of shoes. All these persons assisted in putting the shoes in the cellar of one O’Dowd. During the day, while all the parties were together, they said the shoes came from Shearer’s Hall, which is the building where the Holzer store was. The evidence does not show that Kelley was an accomplice in thé crime. He was not present at its commission ; did not organize or take part in it, further than to help the defendants conceal the property after the burglary, and even then he knew of nothing criminal in its acquisition. It was subsequently that they told him that it was taken from Shearer’s Hall, (Holzer’s.) There may well be doubt whether he was as innocent as he claims, but there was no proof of his being an accomplice. It was a question for the jury to determine. If he was not an accomplice, the corroboration was not necessary. It was only a question of credibility of the witness, which is also a question for the jury. Under the rules governing the trial of issues, there was no error committed on the trial, either by the court or jury, and the conviction should therefore be affirmed.
Pratt, J., concurs.