(concurring.) The defendant was charged in the indictment with having, on September 15, 1890, stolen from the safe in the office of the Hotel Vendóme, located at the corner of Forty-First street and Broadway, in the city of Hew York, a box containing $12,808, four certificates of deposit of $1.000 each, and a gold watch, the property of one Bernard Sanders. The record before us indicates that it was on the trial, and by counsel for defendant in his printed points, admitted that the box containing the property enumerated was, on the 15th day of September, 1890, stolen by some one; so the important inquiry is, whether the proof afforded by the circumstances developed on the trial is of sufficient probative force, and so far conclusive against the defendant, as to justify the jury in convicting the defendant of the crime. The evidence tended to show, without contradiction, that Sanders was and had been engaged in plying a trade or profession known as a “bookmaker,” and as such had in his possession from time to time considerable sums of money, which was kept by him in a box, and deposited at various times, from the 17th of August up to the time of the commission of the larceny, in the safe at the hotel for safe-keeping, and that this fact was known to the defendant and others, engaged in service as clerks and hall-boys of the hotel. It appears from the evidence of the witnesses O’Brien and Matthews that the defendant, some two weeks prior to the time of the larceny, asserted his ability, from the opportunities afforded him from time to time, to take this box from the safe, and solicited the assistance of O’Brien to secrete it, and, upon the refusal of O’Brien to aid him, went so far as to declare his intention to take it, and of secreting the contents under the carpet. The defendant, as a witness in his own behalf, admits that he had the conversation testified to by these witnesses, so that the jury probably had no trouble in reaching the conclusion that the defendant, long before the property was stolen, knew that the box containing money was kept in the safe, and realized the opportunities afforded from time to time to obtain possession of it, and that he not only possessed an inclination, but declared his ability and intention, to do so. It also appears from the evidence in the case that the clerk Whitman, after depositing the box in the safe, remained at the counter of the hotel office until about noon of that day, and until relieved by the witness Cook, as clerk, and that up to that time the box had not been removed from the safe. The evidence of Cook is that he continued in the discharge of his duties as clerk until 6 o’clock in the evening, when he was relieved by the clerk Whitman, and that during this period of time the safe had not been opened, except upon one occasion, by himself, to enable the proprieter, Plaut, to take from the safe a book for inspection; that he did not see, nor was his attention in any manner directed to the presence of, the box in the safe. At 6 o’clock the clerk Whitman relieved Cook, and continued in charge of the office until after midnight. Whitman testifies that it was the duty of the defendant to remain upon a settee about seven feet distant from the counter of the hotel office, when not serving the guests of the house or the directions of his superiors, and that, about the hour of 5 minutes before 11 on that evening, he (Whitman) walked out from behind the counter, down towards the front door, looked out, and walked back, and spoke to one or two of the guests, and then went down-stairs to the wash-room, washed his hands, and returned, being absent about five minutes. At the time he went down-stairs, the defendant was then sitting upon the settee, but upon his return he was gone, and remained absent about half an hour; that access to the office of the hotel was by means of a door-way or gate, leading behind the counter, and that it was always open, and was on the night in question.
*930From, the evidence of Whitman the jury were permitted to infer that the opportunity anticipated, if not sought, occurred for the defendant to take, unobserved, the box from the safe; and the record before us fails to disclose any explanation by the defendant of his absence of about one-half hour immediately following such opportunity. The force of these circumstances connecting the defendant with the crime charged is made more apparent by the evidence of the clerk Whitman, that upon liis return from the wash-room he immediately discovered the loss of the box, taken in connection with the evidence of the witnesses Cook and Plaut that the box had not been taken from the safe during the absence of Whitman, and permitted the inference that the defendant took the box from the safe during the time Whitman was in the wash-room, and that his absence for half an hour thereafter was for the purpose of secreting the same. The defendant made no attempt to explain the cause of his absence, or to give any excuse for his continued absence from duty at the time the evidence disclosed he was charged with the commission of the theft. It must have been manifest to the defendant, upon the presumption that the jury believed the evidence of the witness Whitman, that it was important for him, to exculpate himself from the force of these circumstances, that he explain the occasion of his absence; and for his failure so to do we may assume that the jury indulged in the assumption that he could not without disclosing circumstances tending to connect him with the crime. The proof afforded by these circumstances was sufficient to place him under the obligation of proving where he was at this time, and for his failure so to do the jury were justified in adopting it as a criminating circumstance. Gordon v. People, 33 N. Y. 501; Brooks v. Steen, 6 Hun, 516.
O’Brien testified that some two weeks before the theft thedefendant stated to him that he would take it (the money) up-stairs, and hide it under the carpet. Hazen, a witness introduced upon the part of the people, who was an engineer in the hotel, testified that he made a search for the lost property, and ■ found the four certificates of deposit under the stair-carpet, between the second and third floors of the hotel. If the evidence of this witness is reliable, it probably was assumed by the jury that the party guilty of the theft placed these certificates under the carpet for the purpose of dispossessing himself of articles he could not use, and of leaving them in a situation that would cast suspicion upon others, and thereby relieve himself of the evidences of guilt. It would be a strange coincidence, upon any hypothesis except that of the guilt of the defendant, that the stolen property should be discovered in the place wheie the defendant declared he could hide it. Conceding that the jury believed the evidence of these two witnesses, the circumstances established thereby justify the inference of the execution of the declared intention to take the box in question. The finding of the certificates in the place where the defendant declared he could place the contents, together with his threat to commit the theft, the loss of the property, the opportunity afforded the defendant, his unexplained absence at the time of its loss, furnish, not only sufficient, but, to our minds, convincing, proof of the guilt of the defendant, and that the verdict of the jury was justified upon the evidence in the case.
The defendant complains that the court committed an error in its charge to the jury as follows; “It is true, gentlemen, that the court of appeals in two cases reiterated the rule in reference to the non-production by the defendant of a witness or witnesses who are within his reach, and whom he could produce, and which rule the assistant district attorney has called your attention to. The first case is that of Gordon v. People, and the other case is that of People v. Hovey. He has read to you from the decision of the court of appeals in both of those cases, and you will apply the rule of law that he read from those decisions as to the fact, if it be a fact, that there are witnesses within the defendant’s reach whom he might have produced, if he had desired to do so.” By this reference of the trial judge, he adopted the law of *931these two cases read by the district attorney as applicable to the facts as they might be found by the jury in this case. From the appeal-book before us it does not appear that all of the evidence and proceedings had upon the trial of this case is contained in the record; hence, we are not advised of the facts present to which the rule of law was directed as a guidance to the jury in reaching a conclusion. There is nothing in the record from which an inference is permissible that the rule, as stated, misled, or tended to mislead or confuse, the jury.
There was no error committed, and the judgment of conviction should be affirmed, and the case remitted to the court of general sessions of the peace of Mew York county for execution.