The defendant was convicted of the offense of criminally receiving stolen property. (Penal Law> *58 § 1308.) On his appeal to the Appellate Division the conviction was affirmed in the professed exercise by the court of its duty to give judgment without regard to technical errors not affecting substantial rights. (Code Crim. Proc. § 542.) By permission of a judge of this court, the defendant has now brought the case here.
(1) As the District Attorney says in his brief, the chief witness against the defendant was one Morris Haberman, “ a self-confessed and many times convicted thief.” This witness, we are there told, “ determined to speak the truth and testify on behalf of the People * * * only after
having been convicted of robbery in the first degree, upon which he received the mandatory sentence of thirty to sixty years.” Whether there had been a close fellowship between Haberman and the defendant was an important issue upon which the testimony of either flatly contradicted that of the other.
In its direct case the prosecution offered a writing or record that had been made at the Riker’s Island Penitentiary at a time when Haberman was incarcerated in that institution. Across the top of this document runs the headline: “ Name Haberman Morris No. 64039 Location 3.” The space below is divided into three vertically ruled parallel columns. Above the left-hand column is the printed word “ OUT.” Above the right-hand column is the printed word “ IN.” ■ The center column comprises a sequence of handwritten names and addresses. Among these the name and business address of the defendant are indicated in this manner: “ Mr Jack Rubin 54 W 47 St N Y C ” Alongside that phrase the symbol “ 6/23 ” appears in the left-hand column. The opposite counterpart of the right-hand column exhibits fourteen similar combinations of Arabic numerals.
This cryptic record was produced by a witness who was employed at the penitentiary as a clerk. The inscriptions thereon were characterized by him as “ the entries of mail that comes in and goes out, either mail addressed to prisoners or mail sent out by prisoners.” None of these *59 entries had been made by the witness. He testified, however, that a rule of the penitentiary required them to be made “ at the time the mail comes in and at the time the mail goes out.” (See Civ. Prac. Act, § 374-a.)
Over objection and exception by the defendant, the writing produced by the witness was without more received in evidence and thereupon the witness was allowed to testify that “ as appears on that record ” there were fourteen letters “ that were sent to Haberman from Rubin, and one that was sent out to Rubin.” In our judgment, this ruling should not be sustained.
The defendant denied that he had any communication with Haberman while Haberman was confined in the penitentiary at Riker’s Island. There is no testimony as to how the phrase, “ Mr Jack Rubin 54 W 47 St N Y C ” came to be entered upon the record in question. In answer to the defendant’s contention that an inadmissible hearsay use was made of the entries, the District Attorney proposes that they “ contain nothing but the visual observations of employees of the penitentiary.” (Cf. Johnson v. Lutz, 253 N. Y. 124, and People v. Kohlmeyer, 284 N. Y. 366.)
But even in that view the entries are at most an assertion that Haberman at the penitentiary got communications upon which the name and business address of the defendant appeared in some form at one place or another. Such an assertion was no evidence against the defendant except upon the convenient assumption that in the absence of inherent improbability, or credible proof to a contrary effect, the appearance of the same name at all times designates a given person. (See 2 Chamberlayne on The Law of Evidence, § 1187.) While an assumption of that kind is sometimes made in certain classes of civil cases (15 Am. & Eng. Ency. of Law [2d ed.], pp. 918-924; 9 Wig-more on Evidence [3d ed.], ,§ 2529), we think the jury should not here have been permitted so to hypothesize for the purpose of the defendant’s conviction of the crime which Haber-man sought to fasten upon him. (See People v. Reese, 258 N. Y. 89, 96; People v. Sellinger, 265 N. Y. 149.)
*60 (2) For reasons that were material to his defense, the defendant sought to show to the jury that on one occasion he had not been at his place of business in the early evening of a certain day. Harry Marrow occupied space there as a tenant of the defendant. As a witness for the defense, Marrow told the jury that over a period which included the occasion in question he was working in his quarters in the defendant’s premises between six and eight o’clock every evening and that during that time he did not see any one there. As soon as the direct examination of this witness had been concluded, he was examined in this way: “ The Court: What would you be doing when you were there between six and eight? The Witness: You see, I am a jeweller repairer, I have got a lot of work that is not finished * * *. By the Court: Q. You are working? A. Working, yes. * * * Q. Fixing jewelry? A. Yes, so I work until eight o’clock. Q. You are not a traffic policeman in there, are you; you are not directing traffic? * * * The Witness: No, it takes time.”
A brother of the defendant was another witness for the defense. He gave testimony that at his behest a relative of his (who at the time was a Deputy Attorney-General) once sent to the defendant’s place of business two detectives who were “ not too kind ” in their treatment there of persons who had attempted to extort money from the defendant. This testimony was material to the defense. At its conclusion, the trial judge put to the witness this query: “ So you have an arrangement whereby anybody you don’t like you have the Attorney General send policemen to beat them up; is that right? ” No answer was made by the witness, though the objection of the defendant’s counsel was overruled.
Against these matters, among others, the defendant now protests. It may be that some of his exceptions thereto are in themselves sufficient to warrant independent consideration. (Cf. People v. Wood, 126 N. Y. 249, 269; People v. Cummins, 209 N. Y. 283; People v. Pindar, 210 N. Y. 191.) But we need not decide that point, because in *61 no event would we feel safe in supposing that the error first discussed above was a technical one not affecting the substantial rights of the defendant.
The judgment of the Appellate Division and that of the Court of General Sessions of the County of New York should be reversed and a new trial ordered.