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People v. McCallam

103 N.Y. 587 Court N.Y. Decision date 1886-12-07 English

Delivered by Miller, J.

Contents

Majority

p. 587
The People of the State of New York, Respondent, v. Helen McCallam, Appellant.

Headnote

It is not error for the court, during the course of, and before the conclusion of the evidence on the trial of a criminal action, to refuse to pass upon propositions of law; it has the right to reserve the disposition of such questions until the entire testimony is in.
Upon such trial it is not error for the court to refuse to pass upon abstract questions of law.
If the charge, as a whole, conveys to the jury the correct rule of law upon a given question the judgment will not be reversed, although detached portions may be erroneous; and, if the language employed be capable of different constructions, that one will be adopted which will lead to an af
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fmnance of the judgment unless it fairly appears that the jury might have been misled.
The question whether possession of stolen property by a person accused of the larceny establishes his guilt is one of fact for the jury.
Upon trial of an indictment for larceny, it appeared that while officers were making a search of defendant’s house for the stolen property, one of them said to her that she might as well own up, as they had proof sufficient to convict her, and that she might consider herself under arrest. Thereafter she made certain statements, which were proved under objection and exception. Held, that conceding the statements so made would be regarded as confessions, evidence thereof was competent under the Code of Criminal Procedure (§ 895); it could not be considered’that the statement of the officer was a threat or that the declarations of defendant were induced by fear.
The property alleged to have been stolen was a trunk containing money and other property. The owner testified on his direct examination that he lost $540 in money; from his cross-examination it was claimed that he was uncertain as to the amount taken. The court charged that if they were convinced that the value of the property taken was over $500 and that defendant took it, they might convict her of grand larceny in the first degree; if the value was less but more than $35 they might convict of grand larceny in the second degree; if less than $35, then of petit larceny. Held no error.
(Argued November 34, 1886;
decided December 7, 1886.)
Appeal from judgment of the General Term of the Supreme Court in. the fourth judicial department, entered upon an order made January 13, 1886, which affirmed a judgment entered upon a verdict convicting defendant of the crime of larceny in the second degree.
The material facts are stated in the opinion.
Watson M. Rogers for appellant.
As every circumstance was consistent with defendant’s innocence, the court, at the close of the people’s case, should have advised the jury to acquit. (S hultz v. Hoagland, 85 N. Y. 464 ; Pollock v. Pollock, 71 id. 137.) The finding of the coins raised no presumption of guilt. There was lacking the element of identification (1 Cow. & Hill’s Notes, 427; Burr, on Cir. Ev. 453), and conscious, exclusive possession by the defendant. (Davis' Case, 1 Park. 447-451; Whart. Crim. Ev., § 758; 3 Greenl. Ev.,
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§ 33; 1 Cow. & Hill’s Notes, 426 ; Clarke's Case, 25 Hun, 314 ; Reg. v. Hughes, 39 L. T. [N. S.] 292; 10 Jacobs’ Fisher’s Dig. 15, 631.) The position of defendant at the time of the confession, under arrest and in the custody of three policemen, was one well calculated to terrify even one of the stronger sex, without the addition of threats. (People v. Phillips, 42 N. Y. 200 ; Wharf. Crim. Ev., § 651; Com. v. Sego, 125 Mass. 210 .) A party is not bound to object before the evidence appears to be objectionable, on a mere suspicion that it may be so. The court erred in permitting Champlin to testify to the declarations of Angelina Quinn. The evidence was hearsay, and comes directly within the holding of this court in People v. Beach ( 87 N. Y. 508 , 512-513). As no officer testified that he saw the defendant steal the money, or that he saw it in her possession, and she positively asserted to them that she knew nothing about it, the jury had power to draw inferences and conclusions from the testimony. (Mc-Kenna v. People, 81 N. Y. 360 ; Breen v. People, 4 Park. 380.) The court erred in charging the jury they might convict of larceny in the second degree or of petit larceny. (Penal Code, § 530, subd. 2-3; 1 Bishop’s Crim. Pro. [3d ed.], § 980; Foster v. People, 50 N. Y. 589 ; Ruloff v. People, 45 id. 220; People v. Hartung, 4 Park. 313; People v. Sheehan, 49 Barb. 217 —18; McKenna v. People, 81 N. Y. 360 .) As there was no direct evidence that a larceny had been committed the proof rested on presumption, and the defendant had a right to have the jury so instructed. (1 Bishop’s Crim. Pro. [2d ed.], 980; Therasson v. People, 82 N. Y. 238 ; People v. Kennedy, 32 id. 141.) The court erred in refusing to charge that “if it be shown that either the defendant or a third person committed the deed, but it cannot be distinctly ascertained which one, the defendant cannot be convicted. (1 Bishop’s Crim. Pro. [3d ed.], § 1106; People v. Stokes, 2 N. Y. Crim. 382 ; Loveridge v. Hill, 96 N. Y. 222 ; McMahon's .Case, 2 Park. 663.)
F. C. Emerson for respondent.
Upon this appeal this court
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will not examine the case as to the sufficiency of the evidence, except so far as the question is presented by exceptions taken upon the trial. That power is possessed by the Supreme Court, but - not by this court. (Code Crim. Pro., § 527; Peoples. Hovey, 92 N. Y. 554 ; People v. D' Argencour, 95 id. 625 ; People v. Guidici, 100 id. 503.) It was proper to prove by Hennessey that he never had informed any one of his having the money. (Tooley v. Bacon, 70 N. Y. 34 ; Tiemeyer v. Turnquist, 85 id. 516; Colleran v. Kennedy, 94 id. 634; Atkins v. Elwell, 45 id. 753; Ward v. Kilpatrick, 85 id. 416, 417; Murphy v. People, 63 id. 590; Bergman v. Jones, 94 id. 51; Shaw v. Smith, 3 Keyes, 316; Valton v. Ins. Co., 20 N. Y. 32 ; Patterson v. People, 12 Hun, 128 ; Somerville v. Cook, 9 id. 664; Levin v. Russell, 42 N. Y. 251 ; Fountains, v. Petee, 38 id. 184.) It was also competent to ask Champlin whether he saw the same tracks returning from the railroad. It called for a fact which was within his observation. (Hotchkiss v. Germania Ins. Co., 5 Hun, 95 , 96 ; Greenfield v. People, 85 N. Y. 75 ; Linsday v. People, 63 id. 143 ; Higbee v. Guardian Mut. Ins. Co., 53 id. 603 ; Fanning v. Long R. R. Co., 2 T. & C. 585 ; Stone v. Frost, 6 Lans. 440 ; Adams v. People, 63 N. Y. 621 ; Mitchell v. Jarrett, 16 J. & S. 527; Walker v. Erie R. Co., 63 Barb. 261 ; Crosby v. Day, 81 N. Y. 242 ; Atkins v. Elwell, 45 id. 753; Murphy v. People, 63 id. 590.) The search warrant was also properly received in evidence. (People v. Noekel, 29 Hun, 461 ; S. C. affirmed, 94 N. Y. 137 .) The paper found in defendant’s kitchen was properly received in evidence. (People v. Myers, 2 Hun, 6 , 30; Code of Crim. Pro., § 388 ; Leighton v. People, 88 N. Y. 117 .) The evidence of Champlin that Angelina Quinn told him Butterfield and herself carried Mrs. Pox and Mrs. Hardiman’s clothes home Saturday night, and went by way of Cedar and Coffeen streets, and returned the same way, was competent. (People v. Scheme, 29 Hun, 132 ; Salisbury v. Howe, 87 N. Y. 129 .) The statement made by defendant was not a confession. (1 Bishop’s Cripi. Pro. [3d ed.], §§ 1217, 1247; People v. Parton, 49 Cal. 632 ; People v. Strong, 30 id. 151; Stephens’ Dig. of Ev., art.
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21 ; Bennac v. People, 4 Barb. 164 ; Done v. People, 5 Park. 390; Arnold's Case, 8 Carr. & P. 622; People v. Smith, 3 How. Pr. 227 ; Duffy v. People, 26 N. Y. 588 , 590 ; Reg v. Gould, 9 Carr. & P. 364 ; Deathridge v. State, 1 Sneed, 75 ; Jordan v. State, 3 Ga. 382 .) Upon the facts proven the declaration of defendant would have been competent before the passage of the Criminal Code, even if it should be construed as a confession. [People v. Murphy, 15 N. Y. 384 ; People v. Wentz, 37 id. 303 ; Teachout v. People, 41 id. 7 ; Hendrickson v. People, 10 id. 13 ; Kelly v. People, 55 id. 571; Phillips v. People, 57 Barb. 354 ; 42 N. Y. 200 ; Fralich v. People, 65 Barb. 48 ; Coleman v. People, 58 N. Y. 555 .) The fact that defendant was under arrest did not render the declaration involuntary. [Murphy v. People, 63 N. Y. 591 ; Balbo v. People, 80 id. 484; People v. Rogers, 18 id. 9 ; Hartung v. People, 4 Park. 319 ; People v. Wentz, 37 N. Y. 303 ; Jeffards v. People, 5 Park. 522; Kelly v. People, 55 N. Y. 566 ; Arnold's Case, 8 Carr. & P. 622 ; People v. Smith, 3 How. Pr. 227 ; Willett v. People, 27 Hun, 469 ; Cox v. People, 80 N. Y. 502 ; People v. Greenfield, 23 Hun, 455 ; Woodford v. People, 62 N. Y. 118 ; Code of Crim. Pro., § 895.) As in this case there is a total absence of both threats and fear, the testimony was competent. [People v. McGloin, 91 N. Y. 241 ; 28 Hun, 150 .) The motions for the discharge of the defendant at the close of the People’s case on the grounds : First, that there was no direct proof of the corpus delicti / second, no identification of the stolen property, and third, no proof it was found in defendant’s exclusive and conscious possession, were properly denied. (3 Greenl. Ev., § 30; Ruloff v. People, 18 N. Y. 179 ; Penal Code, § 181; Best on Presump. 12, 246 ; 1 Greenl. Ev., § 13 ; 3 Bl. Com. 371; 1 Phil. Ev. 598 ; Williamson's Case, 1 City Hall Rec. 115; Ferguson's Case, id. 65 ; 1 Cow. & Hill’s Notes, 427 ; 2 Colby’s Cr. L. 195 ; 2 Russ, on Crimes, 123 ; 1 Greenl. Ev., § 34; Knickerbocker v. People, 43 N. Y. 177 ; Goldstein v. People, 82 id. 231 ; Justice v. Lang, 52 id. 323 ; Hill v. Heermans, 22 Hun, 455 ; Smith v. Coe, 55 N. Y. 678 ; 2 Bish. Crim. Pro. [3d ed.],
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§ 745; 2 Russ, on Crime, 124, n. g.; Stover v. People, 56 N. Y. 315 ; 2 Bish. Crim. Pro. [3d ed], § 746 a; 1 Phil. Ev. [5th Am. ed.] Cow. & Hill’s Notes, 527, 529; Knickerbocker v. People, 57 Barb. 366 .) When the jury have been fully instructed upon the case the court may properly decline to entertain any further requests to charge. (Rexter v. Starin, 73 N. Y. 601 ; People v. Myers, 2 Hun, 30 ; Wallace v. Marks, 13 Weekly Dig. 399, 400; Walker v. People, 1 N. Y. Crim. 7 , 22; 26 Hun, 67 ; 88 N. Y. 81 ; Dolan v. Del. & Hud. C. Co., 71 N. Y. 258 , 288-290; Chapman v. Erie R. Co., 55 id. 579; Moody v. Osgood, 54 id. 488, 494-5; Kissinger v. N. Y. C. & H. R. R. R. Co., 56 id. 538; Barber v. Mantle, 2 T. & C. 118; De Wolf v. Wil liams, 69 N. Y. 622 -3; O’ Connell v. People, 87 id. 377; Walker v. People, 88 id. 81; Raymond v. Richmond, id. 671; Dunn v. Horhback, 72 id. 81; Doyle v. Sharp, 74 id. 160; Cooley v. Meeker, 85 id. 619; Morehouse v. Yager, 71 id. 593; Miller v. Barber, 66 id. 559; Allen v. Stout, 51 id. 668; Best on Practice, 12, 246; 1 Greenl. Ev., § 13; 3 Bl. Com. 371; 1 Phil. Ev. 598; Priebe v. Kellogg Bridge Co., 77 N. Y. 597 ; Menard v. Stevens, 12 J. & S. 516; Jones v. Brooklyn L. I. Co., 61 N. Y. 80 .) As the court had already charged that the larceny and defendant’s criminal agency must be established as independent facts, it was all the instruction upon this point defendant was entitled to. (O'Connell v. People, 87 N. Y. 377 ; Moody v. Osgood, 54 id. 488 ; Walker v. People, 88 id. 81; Holbrook v. Utica & Schenectady R. R. Co., 12 id. 236 ; Van Petten v. Village of Saratoga Springs, 12 Weekly Dig. 323; Sherman v. Wakefield, 11 Barb. 255 ; Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534 , 535 Hamilton v. Eno, 81 id. 123; Booth v. B. & A. R. R. Co., 73 id. 38; Roth v. Wells, id. 471,486; Moody v. Osgood, 54 id. 488; Jones v. Brooklyn Ins. Co., 61 id. 80 ; Hope v. Lawrence, 50 Barb. 258 ; Clark v. Vorce, 19 Wend. 232 ; Priebe v. Kellogg Bridge Co., 77 N. Y. 597 ; Kissinger v. N. Y. C. & H. R. R. R. Co., 56 id. 538; Mairs v. Man. Ins. Co., 15 J. & S. 34, 35; Moett v. People, 85 N. Y. 374 ; Walker v.
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People, 88 id. 81, 82; Doyle v. Sharp, 74 id. 154, 160 ; Alen v. Stout, 51 id. 668; Morehouse v. Yeager, 71 id. 394; Dunn v. Hornbeck, id. 81; Miller v. Barber, 66 id. 559 ; Rexter v. Starin, 73 id. 601; McCarney v. People, 83 id. 409; 1 Bish. Crim. L. [6th ed.], §§ 648, 653, 654; 1 Colby’s Crim. L. 17-21; 2 Bish. Crim. Pro. [3d ed.], §§ 3, 14, 59; 73 N. Y. 38 ; 29 id. 471, 486; Holbrook v. Utica & Schenectady R. R. Co., 12 id. 236; Shearman v. Wakerman, 11 Barb. 225 ; Baptist Church v. Brooklyn Ins. Co., 23 How. Pr. 448 ; Penal Code, § 29.) .In the case of confederates, all are equally guilty, no matter which in fact committed the offense, and they all may be indicted as principals. (McCarney v. People, 83 N. Y. 409 ; 1 Chitty’s Cr. L. 256, 257, 258; 1 Russ, on Cr. 26, 27, 30; 1 Arch. Cr. PI. [8th ed.] 56, 57, 59; 1 Whart. Cr. L., §118; 3 R. S. [7th ed.] 2536, § 6; 1 Bish. Cr. L. [6th ed.], §§ 648, 653, 654; 1 Colby’s Cr. L. 17, 21; 2 Bish. Cr. Pro. [3d ed.], §§ 3, 14, 59.) It is distinctly provided that upon an indictment for any crime consisting of different degrees, the defendant may be found not guilty of the degree charged, and guilty of any inferior degree. (Code of Crim. Pro., §§ 444,445; Penal Code, §§ 35, 530 ; People v. McTameny, 10 Hun, 503 ; I N. Y. Cr. 437; People v. Guidici, 100 N. Y. 503 ; People v. D' Argencour, 95 id. 625, 631 ; People v. Hovey, 92 id. 554 ; People v. Boas, id. 560 ; People v. McGloin, 91 id. 241; Sindram v. People, 88 id. 196; Putnam v. Peabody, 11 Weekly Dig. 440; Massoth v. Del. & Hud. C. Co., 64 N. Y. 524 ; Winne v. McDonald, 39 id. 233; Hoffman v. N. Y. C. R. R. Co., 87 id. 26 ; Powell v. Jones, 42 Barb. 24 ; Ginna v. Second Ave. R. R. Co., 67 N. Y. 596 ; Schwab v. People, 4 Hun, 524 ; Bruce v. Westervelt, 2 E. D. Smith, 441; Crawford v. Wilson, 4 Barb. 505 ; Yuguanzo v. Saloman, 3 Daly, 154 ; Jackson v. Timmerman, 7 Wend. 299 ; Durkee v. Marshall, id. 312 ; Dow v. Rush, 28 Barb. 157 ; Mallory v. Tioga R. R. Co., 3 Keyes, 359 ; Powell v. Jones, 42 Barb. 27 .) There was sufficient evidence given that the bills and coin taken were genuine and circulated as money, to make them the subject of larceny. (1 Arch. Cr. P1. [4th Am. ed.] 164; Higgins v.
p. 594
People, 7 Lans. 110 , 114; People v. Jackson, 8 Barb. 639 ; Penal Code, §§ 528, 545; People v. Caryl, 12 Wend. 548 ; Johnson v. People, 4 Denio, 364 , 368; Low v. People, 2 Park. 37; Fallon v. People, 2 Keyes, 145, 148; 2 Bish. Cr. Pro. [3d ed.], § 751.) Hennessey’s testimony, that all of this money had been paid to Mm for his services, was prima facie evidence that the coin and money were genuine and of the value stated. (Fallon v. People, 6 Park. 256; 2 Keyes, 145, 148, 149; Remsen v. People, 57 Barb. 324 , 336; 2 Bish. Cr. Pro. [3d ed.], § 751; Higgins v. People, 7 Lans. 110 ; Low v. People, 2 Park. 42 ; Osgood v. Toole, 60 N. Y. 475 ; Adams v. Greenwich Ins. Co., 70 id. 166 ; Booth v. Bunce, 31 id. 246; Cooper v. Beam, 5 Lans. 322 ; Isaacs v. N. Y. Plaster Works, 8 J. & S. 277; Bunn v. Cayuga R. R. Co., 12 N. Y. 486 ; Bole v. Cook, 5 Alb. L. J. 43; Austin v. Burns, 16 Barb. 643 ; Westbrook v. Douglass, 21 id. 602; People v. Third Ave. R. R., Co., 45 id. 63; Jenks v. Smith, 1 N. Y. 90 ; 3 id. 248; 38 id. 469.)

The defendant was indicted for the crime of grand larceny in the first degree, and convicted of grand larceny in the second degree. She was charged with stealing from one Hennessey a trunk containing $540 in money, and two pairs of socks. There was sufficient evidence upon the trial to submit to the jury the question whether the defendant was guilty of the crime for which a conviction was had,- and, under the facts proved, the court was not authorized to direct a verdict of acquittal

The proof established beyond question that the crime of larceny had been committed, and there was evidence which pointed to the defendant as the guilty party. There was also evidence showing that .the defendant had been informed by the wife of Hennessey that the money stolen was in a trunk belonging to Hennessey, and kept under a lounge in his house. Ho person had access to -the place where the trunk was kept, from the time it was last seen there prior to its being taken, besides Hennessey and his wife, except the defendant. The defendant -was there on the night when the larceny was committed for

p. 595
the purpose of obtaining a bedstead of Hennessey’s wife, as she stated, and while, at her request, Mrs. Hennessey went up stairs to procure the bedstead she was alone for a period of about fifteen minutes, during which time she had ample opportunity to remove the trunk and its contents without being detected. She was thus in a position where she might have committed the crime alleged. Several gold coins of the same denomination as those stolen, were found concealed in the defendant’s wood-shed wrapped up in a newspaper, other portions of which were found in the defendant’s house. There was also evidence of some tracks of the defendant and her daughter, made as if engaged in carrying something, and which led to the place where the trunk was found with its contents gone excepting some $3.75 in small silver coins. In regard to these tracks the defendant and her daughter gave testimony which was contradicted by other evidence.

The facts referred to, with other circumstanc'es not necessary to enumerate, point to the defendant as the perpetrator of the crime, and it cannot be said, we think, that no offense was made out against her. It was for the jury to draw the inference as the case stood, and to determine the guilt or innocence of the accused.

Ho error was committed by the court upon the trial in refusing to hold, before all the evidence was in, that upon a presumption that a larceny has been committed, no presumption can be founded that the defendant committed the crime, and that, as matter of law, no presumption of guilt can be raised from the possession of stolen property, except where the possession is conscious and exclusive on the part of the defendant. The court clearly had a right to reserve the disposition of these questions until the entire testimony was in, and could not, in accordance with any well-established practice, be required to indorse the propositions urged before the case was finally closed. Ho motion was, at that time, before the court requiring its opinion on the abstract questions presented, and it was eminently proper to withhold its decision in regard to them'until all the

p. 596
testimony was introduced, and the case was ready for submission to the consideration of the jury. Any other course might lead to confusion, and tend to embarrass the action of the court in its final disposition of the questions involved. The same questions were raised in the requests made to charge, some twenty-seven in all, at the close of the case. In regard to all of these it may be said that they embraced mostly abstract propositions which would tend to confuse the case in the minds of the jury, and not lead them to a correct result.

The first proposition above cited may properly be said to be strictly accurate, but its presentation, in the form adopted, was in no sense required for the protection of the rights of the accused. The charge, as made, fully covered all.the facts elicited by the evidence, and there is no rule, under such circumstances, which demands that the court should deal in presenting abstract theories which would not serve to elucidate or explain the case as appeared by the testimony. The correctness of the proposition made would necessarily follow from the presentation made by the judge in his charge, of the evidence upon the trial, and the rules applicable to the same. The effect of the entire charge was that the commission of the crime alleged did not, of itself, raise a presumption of the defendant’s guilt, and that evidence was essential to establish such guilt.

As to the second proposition, it may be remarked that it was not strictly accurate. It was not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant, and such a rule only applies in a case where the evidence of guilt is the possession of the property stolen, and it is to be presumed from that fact. The question whether such possession establishes guilt is one for the jury. In the case considered, where there was no direct proof of an actual possession, but evidence of circumstances which tended to show that the defendant took and had possession of the money, it was for the jury to say whether the defendant was guilty of the offense charged,' and the proposition stated would seem to be inapplicable. What has been already remarked generally as to the

p. 597
first proposition is also applicable to the second, as well as to the other requests made. The rule governing the requests made is stated in Qaldwell v. New Jersey Steamboat Co. ( 47 N. Y. 282 ), by Church, Ch. J., as follows : “ If the charge, as a whole, conveyed to the jury the correct rule of law on a given question, the judgment will not be reversed, although detached sentences may be erroneous; and if the language employed be capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appear that the jury were, or at least might have been, misled.” Having this rule in view, we are unable to discover any ground of error in the refusals to charge the requests made.

Upon the trial a motion was made by the defendant’s counsel to strike out all the evidence given by one Kinney in regard to the admissions of the defendant after certain statements made by the officer Guest to her, and also all the evidence of one Champlin as to the admissions made by the defendant that certain tracks testified to were hers and her daughter’s, for the reason they were made under threats by the officers, and that she was told she might as well own up, as they had proof to convict her. A further motion was made to strike out all the evidence given on the subject subsequent to the státement that there was evidence sufficient to convict the defendant. The court denied each of the motions, and the defendant excepted separately to the rulings. It appears that three of the com stables were at the defendant’s house to make a search for the money stolen when they had the conversation with the defendant as already stated, and after which she told them about the tracks. Section 395 of the Code of Criminal Procedure declares that “ a confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor.”

The evidence given by the defendant was a statement in regard to her-action so far as it related to the tracks which had

p. 598
been found in the vicinity of the house where she lived. Conceding that the declarations, made by her, can be regarded as confessions we think, under the testimony introduced and under section 395 of the Criminal Code (supra), the evidence was competent. No threat was employed by the officers which can be said to have induced the defendant to make •any statement as to the alleged offense. The assertion of the constable that he had enough to convict her and that she might consider herself under arrest did not, of itself, constitute a threat, which, it can be claimed, operated upon the mind of the accused and caused her to make the declarations she did. In People v. Wentz ( 37 N. Y. 301 ), the officer told the accused “ he was in a bad fix and had got caught at last.” The defendant then confessed his guilt, and it was held that there being no inducement, promise, threat or menace used to'obtain the confession, or influence its being made, the evidence was properly admitted. It is not apparent that any distinction eixsts- between the case cited and the one now before us. In both of them the statement was to the effect that the defendant had been detected in the commission of the crime alleged. The statement in each case was substantially alike, and the case cited is directly in point. There is nothing here which indicates that any threat was made, or that the declarations of the defendant were induced by fear. That they were untrue is of no consequence so long as they were made by the accused as voluntary statements in her own behalf.

The evidence of Ohamplin, as to the declaration of Angelina Quinn, was, we think, competent. It showed that she was an accomplice in the commission of the crime charged, and she had already testified in regard to the transaction. The evidence introduced tended to contradict her testimony, and was clearly admissible.

There was no error in the charge of the court to the jury to the effect that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in the first degree, and if the property taken was of the value of more than $25 they

p. 599
might convict of grand larceny in' the second degree, and if less than $25 the verdict might be for petit larceny. The only evidence as to the amount of money lost was that of Hennessey, who swore on his direct-examination that he lost $540. He was cross-examined at great length in regard to the amount of money that he had, and evidently with the view of showing that it was uncertain what amount of money in fact was in the trunk. If the amount was less than $500 and more than $25, "then the crime was grand larceny in the second degree. Assuming that the whole amount claimed to he in the trunk was not stolen, as $20 in gold and $3.75 in silver quarters were found, and these with the trunk and socks made property over the value of $25, the crime of grand larceny in the second degree would be established by the evidence. The charge, as made, had a direct bearing upon this portion of the evidence, and if the jury believed that' there was doubt as to the property taken amounting to over $500, they might properly have found the defendant guilty of a lesser degree than the first. So also if the evidence was uncertain as to the taldng of the trunk and the amount of money testified to'by Hennessey, they might have convicted the defendant for the taking of the smaller amounts found, in whole or in part, and brought in a verdict of guilty of petit larceny. The crime charged was grand larceny, and if the evidence established only petit larceny there is no reason why a conviction should not be had for that ofíense.

We have examined the other questions in the case and find in none of them any ground of error which justifies a reversal of the judgment.

The conviction should be affirmed.

All concur, except Rapallo, J., not voting.

Judgment affirmed.

Cases cited