The defendant, with one McLuckey, was convicted on a charge of stealing six chickens, by a Court of Special Sessions, at the town of Cortland, Westchester county, and sentenced for five mouths to the Albany County Penitentiary, and on appeal the said conviction was affirmed by the Court of Sessions of Westchester county.
McLuckey is now serving out his term of imprisonment in the penitentiary, and the defendant, Jeremiah White is confined in the county jail of Westchester county, on an order staying said judgment, and this appeal is brought on behalf of the said Jeremiah White only.
It is claimed that the defendant was convicted upon declarations made by McLuckey to the officer in the absence of the defendant. This is true, but the evidence was competent against his co-defendant, and was admitted without objection.
The defendant afterward moved to strike out the evidence, which was properly refused. The proper motion was that the justice should instruct the jury not to consider the evidence as against the defendant. Such motion was not made, and the motion that was made to strike out the evidence was properly overruled.
The charge of the complaint was petit larceny, and the property alleged to have been stolen was of some intrinsic value.
The case was fairly tried and properly submitted to the jury, and we think the evidence was amply sufficient to justify the finding of the verdict.
Conviction affirmed.
Barnard, P. J., and Dyokman, J., concur.