The only exception deserving consideration in this case is ‘that which was taken to the refusal of the court, at the conclusion of theevi-dence of the prosecution, to advise the jury to acquit the defendant. The motion was made on the sole ground of the insufficiency of the evidence to warrant a conviction. There was no reason to doubt that the crime charged .had been committed by some person. It consisted in taking a box, deposited for Bernard Sanders in the safe of the Vendóme Hotel, in the city of Hew York. It was placed there on the 15th of September, 1890, and taken from the safe during that day. The box contained $12,808 in United States currency, and four certificates of deposit, of $1,000 each. At and previous to •the time when the larceny was committed, the defendant was employed as a .hall-boy in the hotel, and he occupied a position, when he was not obeying -other orders, on a seat in the office of the hotel, about 12 feet away from the *927safe. The owner of the box was a guest or boarder at the hotel, and was in the habit of having the box deposited in the safe, for its security. This fact became known to the defendant, and evidence was given by the witnesses John O’Brien and Oscar Matthews from which the conclusion could be fairly drawn that he had planned the stealing of the box. O’Brien testified that “two or three weeks prior to the 15th day of September of this year I had a conversation with the defendant in reference to a guest stopping at the Hotel Vendóme. The conversation was not at my house, where I live. Cassin invited me out to have a walk in the evening, and the talk was had while we were walking. The first thing he said was that he had a good scheme. I asked him what it was, and he went on to relate all about it. He said that there were two book-makers stopping at the Hotel Vendóme, and that they left in the safe every night a box containing, I think he said, from ten to twenty thousand dollars. ‘ So,’ he says, ‘ pretty near every night I be sent into the office for to relieve the clerk. He goes to the water-closet.’ And that he had the combination of safe, and that if I would go there for two or three nights, and when I would see him in the office for to walk in, and he would hand me the box. Question. And what did he say to you you would have to do with it ? Answer. He said that all I would have to do was to take it with me. So, after he had got through, then I said, * I guess I won’t have nothing to do with that,’ and I advised him not to, either. So he went on to relate then that he was going to try to get it.” The witness added that he said to the defendant, “I guess I won’t have nothing to do with that.” That the defendant asked what would be th'e penalty, and that the witness replied, “From ten to fourteen years.” And the witness then answered: “Well, he asked me then what would be the penalty, and I told him that I thought it was from ten to fourteen years, and he said, ‘ Well, I would be willing to serve ten years if I would get a stake, because I would have more money when I came out than I would earn while I would be there;’ and then he got talking. I think he said he would do it himself. I couldn’t say his exact words now, but it was to that effect, and that he would take it up-stairs, and hide it under the • carpet. We both went home together. The witness Matthews testified on this subject as follows: “I should judge it was about three weeks before the 15th of September, about a week after Sanders and his partner came there. We had the conversation in the basement of the hotel some time during the • day. It must have been either at 12:30 or 6, because he goes off and I go on some time between that time. I don’t know where the watch was found in the hotel. The conversation I had with the defendant at that time and place was, he asked me if I had ever noticed that box that was turned into the office, and I told him I had, and he said he wouldn’t mind having it, and he didn’t think there would be much trouble in getting it, and I told him he had better leave it alone, and have nothing to do with it. That was all that was said. About a week afterwards a few words passed between us. • I don’t remember whether I mentioned it first, or he did, but the words were: ‘ Why don’t you get the box?’ and either he or I answered, ‘Why don’t yon get it yourself? ’ I don’t know which one of us said it. I had forgotten all about it until my attention was called to it. The next I knew of it was when the loss of the box was discovered, and I have had no further conversation with the defendant since that time. I was at the hotel when the loss of the box was discovered. Cassin was not there.” These conversations were not denied by the defendant, but he testified that he had no intention to, and did not, take the box. After the larceny the box was found in an ash can, near which the defendant passed, when for a short time he ran the elevator, to relieve its ordinary operator, and the certificates of deposit were found under the stair-carpet, on the stairs extending from the second to the third story of the hotel; and after the arrest the defendant is stated by O’Brien to have said: ■“If Oscar is brought down, then I will be in a hole.”
*928The precise time when the box was taken from the safe was not made to appear, but the evidence tended to show that there were at least two occasions when the defendant could take it, as the clerk and other persons usually in the office of the hotel were temporarily absent therefrom. This evidence authorized the jury to conclude that the defendant had formed the design of stealing this box, and was willing to serve a long term of imprisonment to obtain its contents. His plan was to take the box, and conceal the contents under the carpet; and the fact that a substantial part of such contents was soon after the larceny found under the carpet, as he designed to conceal it, directly points to him as the guilty person. The improbability that the same plan would be formed, and in part executed, by another person, is so great as to justify its exclusion as a fact in the case. The details had been too carefully matured by reflection to afford ground for belief that they had been formed and executed in the same way by another person than the defendant. For that reason, this combination of the circumstances was very weighty evidence against him, and, with the evidence that he had the opportunity to commit the crime, and was impressed with the conviction that the evidence of Oscar (intending thereby to refer to Oscar Matthews) would place him in a “hole,” as he is stated to have expressed himself, was sufficient to bring the case within the province of the jury. The request made at the close of tile people’s evidence was rightly denied; and while the defendant, as a witness in his own favor, positively denied his guilt, the ease was still one for the decision of the jury.
Ho exception was presented to the charge of the learned recorder in submitting the case to the jury, but it has béen urged that he expressed himself too plainly on the effect of the evidence. What he did say in this respect was that “the declarations of a person of his intention to commit a crime, if those declarations are made under such circumstances as to convince a jury that they were freely and voluntarily made, without any threat or induce, ment, without any fear,—that they were freely and voluntarily made,—by a person of sound mind and understanding, and that is followed up by the fact of the commission of a crime having some connection with those declarations, —what stronger evidence could be presented to a jury? It is claimed in this case, that that state of facts has been established by the evidence, and that those conclusions are proper conclusions to draw from it. You, of course, are to determine all questions of fact, and upon you rests the responsibility .of determining them correctly.” But in the conclusion of these remarks, and otherwise, the jury were informed that it was for them to decide the facts, and that relieved them from all supposition that there was anything intended to be dictatorial in what was said. The jury were not only left at'full liberty to determine the facts for themselves, but they were apprised that such was their province; and in support of the verdict it is to be presumed that they acted on that theory.
The reference to the omission of the' defendant to produce exculpatory witnesses was within what had previously been settled as the law by the courts. Gordon v. People, 33 N. Y. 501, 508, 509; People v. Grimshaw, 2 N. Y. Crim. R. 390, 395, 396; and People v. Hovey, 92 N. Y. 554. If what was said was too positively expressed, it was rendered free from objection by what was added at the request of the defendant’s counsel, that the same rule applied to the prosecution, which was all the counsel deemed to be important. It is true that others liad superior opportunities for the commission of this offense, but that is all that can be justly said in his favor; for there is an absence of all other facts having any tendency to implicate either of them as the criminal. The defendant had the opportunity, and had actually planned and intended the crime, as the jury seems to have believed the evidence; and a strong circumstance indicating him to be the guilty person was the finding of the four certificates of deposit as he suggested the stolen property could *929be hidden. In no view does the defendant appear to have been prejudiced by what occurred on the trial, and, as the evidence quite clearly indicated bis guilt, his conviction was proper, and must be affirmed.