Ward v. People — 3 Hill & Den. 395

Majority

p. 395

Ward vs. The People.

Headnote

On the trial of an indictment for larceny it appeared, that the owner of the goods, on the prisoner’s expressing contrition for the offence, promised not to prosecute him; but the officer, whom they soon met, told them tho matter could not be settled and immediately arrested the prisoner. Held, that the prisoner’s confessions, made afterwards, were admissible in evidence against him, notwithstanding the previous promise of the owner.

Where a bill of exceptions shows that certain evidence was excluded in the court below on objection made, but does not state the ground of either the objection or decision, any objection which might have been available at the trial may be urged on the argument in this court. Per Nelson, Ch. J.

A witness is not bound to answer whether he has been guilty of stealing; as his reply might subject him to criminal punishment

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If the goods of A. be stolen by B., and afterwards they be stolen from B. by C., an indictment, against the latter may allege the title to be in either A. or B., at the election of the pleader.

Semble, that the revised statutes have not made the offence of petit larceny a mis demeanor; but that it is still a felony, as at common law.

There are no accessories in petit larceny; but all concerned in the commission of the offence are principals.

Ice, put away in an ice-house for domestic use, is private property, and, as such, the subject of larceny.

Error to the Oneida general sessions, where Ward was convicted of petit larceny—second offence. The indictment charged the prisoner with having stolen twenty-five pounds of butter, the property of one John Flagg ; and then alleged a previous conviction, &c. of the prisoner, by a court of special sessions, pn a charge of stealing ice from the ice-house of one Fay. On the trial, the second offence was established by the testimony of Flagg, the alleged owner. In the course of Flagg’s examination, it appeared that, after the butter had been stolen and recovered, a conversation took place between the Avitness and Ward, in which the latter expressed his regret for having committed the offence, and desired the witness not to institute proceedings against him. The witness promised to comply, provided the prisoner would satisfy the constable for his trouble in searching for the property. This the prisoner agreed to do, and on meeting the constable shortly aftemards, they both informed him that the matter was settled. The con^ stable said it could not be settled ; and thereupon he arrested Ward, and put him in prison. Ward then said : ££ Why don’t you take Harvey Arnold 1 he wrns with me.” The prisoner’s counsel objected to the receiving of this confession in evidence, on the ground of its having been made under the influence of previous inducements held out to the prisoner by Flagg. The court overruled the objection, and the prisoner’s counsel excepted. Flagg also testified that he bought the butter in question of the captain of a canal boat. The prisoner’s counsel proposed to ask the witness if he, or if he and the canal-boat captain together, did not steal the butter. This question was

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objected to, and the objection sustained; whereupon the pris-* oner’s counsel again excepted. It appeared in the course of the trial, that the butter stolen from Flagg had been previously stolen from firkins on a canal boat; and the evidence tended strongly to connect Flagg with the larceny. Harvey Arnold testified that he (Arnold) stole the butter in question, and that the prisoner was not present at the time; but that the larceny was committed with his advice and procurement. The record of the former conviction being offered in evidence, was objected to on the ground that ice was not the subject of larceny. The court overruled the objection, and the prisoner’s counsel excepted. After the testimony was closed, the prisoner’s counsel requested the court below to charge, that if the jury believed Arnold took the butter under the circumstances disclosed by him, the prisoner was guilty as accessory, and not as principal i and that he could not, therefore, be convicted under this indictment. The court charged that if Arnold took the property in the absence of the prisoner, but by his advice and procurement, the latter was a principal in the offence, as there could be no accessories in petit larceny. The counsel for the prisoner excepted to the charge. The jury rendered a verdict of guilty; and, after judgment, the prisoner sued out a writ of error.

W. M. Mien, for the plaintiff in error.

W. C. JYoyes, for the people.

The prisoner’s confession was properly received in evidence. It was made after he had been distinctly apprised by the officer that the offence could not be settled, and when he knew that the law must take its course. The confession cannot, therefore, be said to have been made under the influence of previous inducements,^[1]

(a) (a) See Cowen & Hill’s Notes to Phil. Ev. 235 to 250.

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The question put to Flagg was properly overruled. In the first place, the witness was not bound to answer the question, as it might subject him to criminal punishment; and as no ground is stated in the bill of exceptions upon which the testi mony was claimed to be competent on one side, or incompetent on the other, any objection may be urged to it here that could have been taken on the trial.^[2] The claim to have it received was general, and so was the objection to its admissibility. In the second place, if the question had been answered in the affirmative, the fact would have been immaterial, because possession of property in the thief is sufficient to make it the subject of larceny ; and the title may be laid either in the owner or the thief. Thus, if A. steal goods from B., and C. afterwards steal the same goods from A., C. is a felon bolh as to A. and B. (2 East’s Cr. L. 654 ; 2 Russ. 156 ; 1 Hale’s P. C. 507.)

It was doubtless intended by the legislature to reduce the offence of petit larceny to the grade of a misdemeanor; but 1 am inclined to think they did not accomplish their object. The statute declares, that “ every person who shall be convicted of stealing, &c. the personal property of another, of the valúe of twenty-five dollars or under, shall be adjudged guilty of petit larceny, and shall be punished by imprisonment in the county jail,” &c. (2 R. S. 690, § 1.) The crime is felony at common law; (2 East’s Cr. L. 736 • 3 Chit. Cr. L. 924 ;) and the only provision in the statute that can go to change the common law character of the offence is that which declares that the term “ felony,” when used in any statute, shall be construed to mean an offence for which the offender, on conviction, would be punishable by death, or by imprisonment in a state prison. (2 R. S. 702, § 30.) This provision defines

(b) (b) Quere, however, whether the witness’ privilege in such case he not so far personal that the party is unable to avail himself of it. (See Marston v. Downes, 1 Adol. & Ell. 31 ; Thomas v. Newton, 1 Mood. & Malk. 48, note (b).)

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statute felonies, but does not interfere with those existing at common law untouched by the statute, of which the offence of petit larceny is one. The question is not, however, material in this case; for whether the offence be regarded as a felony or misdemeanor, it is well settled that there are no accessories in petit larceny. All are principals. The very point was determined in Evans’ case, by all the judges. (Foster, 73 ; see also 2 East's Or. L. 743 ; 1 Russ. 31 ; 1 Hale's P. C. 530, 616 ; 12 Rep. 81.)

There can be no doubt that ice put away in an ice-house for domestic use, is the private property of the party ; and, as such, the subject of larceny. It is now a very important article of commerce to be found in the markets of every commercial country.

I am satisfied the conviction was right, and that the judgment should be affirmed.

Ordered accordingly.