Haskins v. People — 16 N.Y. 344

Majority

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Haskins, plaintiff in error, against The People, defendants in error.

Headnote

Upon the trial of an indictment for grand larceny, it is competent for the people, for the purpose of showing the whole transaction, to give evidence of the taking, by the prisoner, of property insufficiently described in the indictment, it containing a sufficient description of other property of a value adequate to make the offence grand larceny.

What is a sufficient description of coin and banknotes, stated_perDENio, Oh. J

A prisoner may be convicted of burglary or larceny in any county into which he carries the goods stolen by means of burglary. In the indictment for simple larceny, it is sufficient to allege the taking to have been in the county where the indictment is found; hut it seems that an indictment for the burglary, in a county other than that where the burglarious entry was made must set out the facts specially, to bring it within the statute (2 R. S., 727, §50).

Where an accomplice and his wife are witnesses against the prisoner, it is not error in the judge to instruct the jury that they may take the testimony of the wife into consideration, as corroborating that of her husband the accomplice.

The case of Manley v. The People (3 Seld., 295) explained, and the report corrected, per Denio, Ch. J.

Weit of error to review a judgment of the Supreme Court, affirming, on error to that court, a judgment of the Oyer and Terminer of Onondaga county.

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The prisoner was indicted, with four other persons, for grand larceny, the property alleged to have been stolen being money and bank notes, the property of David J. Shaw. It was described in the indictment as “ two promissory notes for the payment of money, commonly called bank notes, of the Stonington Bank, current money of the State of New-York, each of the value of fifty dollars; bank bills of banks to the jurors unknown, and of a number and denomination to the jurors unknown, of the value of six hundred dollars; silver coin, current money of the State of New-York, of a denomination to the jurors unknown, of the value of fifty dollars; gold coin, current money of the State of New-York, of a denomination to the jurors unknown, of the value of fifty dollars.”

The plaintiff in error was tried separately in the oyer and terminer, in June, 1857. Shaw, the owner of the money alleged to have been stolen, resided at Summer Hill, Cayuga county. His iron safe, which was kept in a wing in his house, remote from the apartment in which he slept, was forced open during the night of the 27th of October, 1855, and the contents, about $600 in money and some papers, were taken away. Shaw swore that there were among the money at least two fifty dollar bills of the Stonington Bank; that the residue of the money was in current bank bills, and gold and some silver coins. Upon the examination of Shaw he was asked by the prosecution to state the amount and kind of bills and of gold and silver coin. The prisoner’s counsel objected to the inquiry on account of the generality of the description in the indictment. The objection was overruled and the prisoner’s counsel excepted. The witness described the different kinds of money as well as he was able.

The evidence of the prosecution tended to show that the five persons indicted went from Syracuse to Summer Hill on the twenty-seventh of October, arriving at Shaw’s house in the night of that day; broke and entered it, forced open the

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safe with an iron bar, stole the money and papers, returned to Syracuse while it was yet dark, and there, at the saloon of McDermott, one of the parties, divided the money between them. This McDermott, who was one of the parties indicted, was examined by the prosecution, having been promised impunity by the district attorney. He testified to the journey made by the five persons, including the prisoner and himself, to Summer Hill, to the burglary and larceny, and the return of the party to Syracuse and dividing the money there. The witness himself went by railroad from Syracuse as far as Homer, where the five met, and the prisoner conducted them to a two-horse carriage near'the station, in which, as McDermott swore, they all rode the remaining distance to Shaw’s, and in which they returned to Syracuse. This carriage and the horses belonged to one George Bi?own, a stable keeper of Syracuse, and were let, as it was proved, in the morning of the twenty-seventh of October, to Rann, one of the five prisoners; but before it was driven out oí Syracuse Haskins got into it, and be returned it to the stable the following morning, the horses appearing to be fatigued and the carriage muddy and broken. A Mr. and Mrs. Harrison, who lodged at Shaw’s house the night in question, were examined as witnesses for the prosecution. They heard the noise of the party entering the house and breaking the safe, and saw it broken and empty in the morning, and they saw some of the party from the window of their room; and Mrs. Harrison, by the light of their lantern, recognized two of them standing near the house, S. R. Haskins and Bliss, the latter positively, the former less distinctly. The wife of McDermott, the accomplice, was also swore for the prosecution, and testified to her husband being absent from home from the evening of the twenty-seventh to the morning of the twenty-eighth of October.

It appeared that the prisoner, after being first arrested, escaped from the officer and changed his name to Shaver; but he was afterwards retaken. The counsel for the pri

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soner asked the court to discharge him: First. On the ground that he iould not be prosecuted in Onondaga county; and, Secondly. Because, as was alleged, he was not proved to be connected with the offence, except by the uncorroborated testimony of the accomplice, McDermott. The motion was denied, and there was an exception. The court charged the jury, among other things, that the evidence of the accomplice, McDermott, was not sufficient to convict the defendant, unless corroborated by other testimony; that the evidence of Mr. and Mrs. Harrison, and also that of Mrs. McDermott, should be taken into consideration as such corroboration. The prisoner’s counsel excepted, and desired that the jury might be charged that the testimony of these persons furnished no corroboration of McDermott, because it did not convict him of the offence; and for the farther reason, as to Mrs. McDermott, that she, being the wife of the accomplice, could not corroborate him. The court did not so charge, and the prisoner’s counsel again excepted. The prisoner was found guilty and sentenced to be imprisoned in the state prison five years. The case was submitted on printed arguments.

Sheldon 8f Broum, for the plaintiff in error.

H. S. Fuller, district attorney, for defendants in error.

The indictment was sufficient. When the substance of the offence is set out, the jurors may omit a matter of description which they cannot ascertain. (The People v. Taylor, 3 Denio, 91 , and cases cited.) If this were not so there would often be a failure of justice. In the case of the stealing of a considerable parcel of bank notes or a quantity of coin, it would frequently, and perhaps generally, happen that the owner would not be able to specify the different kinds of notes or the various species of coin. The desci iption of them as bank notes, and as gold or silver coin,

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together with a statement of the ownership, with an averment that a more particular description cannot be given, sufficiently identifies the offence to guard the prisoner against the danger of another prosecution for the same crime. But this indictment would be sufficient without any aid from this rule. Two of the notes which the defendant stole, which were of an amount sufficient to constitute grand larceny, were described with particularity; and if it should be granted that the other bills and the coin were not sufficiently described, still they could be spoken of in the testimony among the circumstances attending the offence, though the conviction could only be had as to the property of which there was a sufficietn description. The exception upon this point was not well taken.

As the stolen money was brought by the thieves into the county of Onondaga, the prisoner was legally indicted in that county. This has been the settled law from an early period. (3 Inst., 113; 1 Hale's P. C., 507; The People v. Gardner, 2 John., 477 .) Even if the original taking had been in another state or country, and the felon had brought the stolen property into this state, he could now be indicted in any county into or through which he carried it. (2 R. S., 698, § 4; The People v. Burke, 11 Wend., 127 .) No distinction arises out of the fact that a burglary was committed where the property was stolen, in Cayuga county. Burglary, when accompanied with larceny, is a compound offence. Under a count for the burglary the prisoner may be convicted of a simple larceny. At the common law the burglary could only have been prosecuted in the county where it was committed, but when accompanied with larceny the latter could be prosecuted in any county into which the prisoner took the stolen property. The same is true of robbery or other compound offences. The principle is well illustrated in the following passage from Hale: “Á. robs B. on the highway, in the county of 0., of goods of only the value of twelve pence, and carries them into the county of D. It is

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certain that this is larceny in the county of D. as well as in the county of 0-, but it is only robbery in the county of C., where the first taking was; and for robbery he cannot be indicted or apprehended in the county of D., but only in the county of C. But he may be indicted of larceny in the county of D., though the robbery were but of the value of one penny; yet if A. were indicted thereof in the county of C., he should have had judgment of death and been excluded from clergy.” (1 Hale’s P. C., 536.) In these cases the indictment takes no notice of the county where the first taking was, the theory being that the legal possession of the goods remains in the true owner, and every moment’s continuation of the trespass and felony amounts to a new caption and asportation. (1 Russ, on Crimes, 173; 2 Hale, 163; 1 Hawk. P. C., ch. 33, § 52; 4 Bl. Com., 304; 2 East P. C., 771, ch. 16, § 156.) The idea that, in cases of this description, the crime is considered as actually committed in the county where the offender is found with the goods, is very distinctly carried out in the case of Rex v. Parker (1 Russ., 174). An indictment was found in Hertfordshire for stealing four live tame turkeys; and it appeared that they were stolen alive in Cambridgeshire, killed there and carried dead into Hertfordshire; and upon the point being heard, the judges held that though the carrying into Hertfordshire constituted a larceny, yet it was a new larceny there, and a larceny of dead turkeys, and not of live ones.

It was unnecessary, and I think it would have been erroneous, to have set out in the indictment the ofience in Cayuga county. The courts in Onondaga county had no jurisdiction of that transaction, as a distinct offence. It was simply matter of evidence, to characterize what was done in Onondaga, and to show the quality of that act.

The prisoner might, under the statute, have been indicted in Onondaga for the burglary committed in Cayuga. (2 R. S., 727, § 50.) In such a case, I think the indictment must have been special. The burglarious entry could not have

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been charged to have been made in Onondaga without a vari anee; and if it had stated it to have been made in Cayuga, according to the fact, without a statement that the property had been brought into Onondaga, it would have 'appeared that the courts of the latter county had no jurisdiction to try the offence. The difference between the two cases is this: burglaries may be tried out of their proper counties in certain special cases, that is, where the goods burglariously taken are carried into another county by the offenders; but this is by positive law, anej. not because the burglary was actually committed in the county where the indictment is found, or in judgment of law is considered to have been committed there. The fact must therefore be set out which brings the case within the statute; but in the case of an indictment for a simple larceny, found in a county into which the thief has carried the property stolen in another county, the law adjudges that the offence was in truth committed there, and hence there is no. occasion for a statement in the pleading of what occurred in the other county.

I should not have thought it necessary to say so much upon this part of the case, except for an error which has occurred in reporting the case of Manley v. The People (3 Seld., 295). From that case, as reported, it would appear. that the court held that if the prisoner stole the property in Suffolk county and brought it into the city of New-York, he could not be indicted in that city. But this was not the decision, as is apparent from the printed case used on the argument. There was a question of fact on the trial whether the accused did bring the stolen property to the city of New-York, and the judge charged that if it was stolen in Suffolk county by the accused, and by him brought to New-York, or, if not brought to New-York, if the accused stole it upon i, steamboat while navigating Long Island sound, he was guilty of larceny. This was considered erroneous, on the ground that the sound was not a river, lake or canal, within

Concurrence

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the meaning of 2 R. S., 727, § 44; and this is all which was decided.

There was no error committed by the Oyer and Terminer m its charge. The testimony of Mr. and Mrs. Harrison and of McDermott’s wife did furnish a strong corroboration of the truth of the account given by the accomplice McDermott. It did not add anything to his testimony on the material point whether the prisoner then on trial was one of the party, and the court did not advise the jury that it did. It was essential for the prosecution to establish the fact that a party of thieves and burglars had gone from Syracuse to Summer Hill and committed this burglary and larceny. This depended principally upon the testimony of McDermott, but it was so corroborated by the evidence of the three witnesses named that it was quite safe to believe it. The court was therefore correct in saying that McDermott was corroborated by these witnesses. The corroboration of that witness upon the other vital point, to wit, the presence and cooperation of the prisoner with the party, was furnished by the evidence touching his connection with the carriage. What was said by the court upon that point is not stated in the bill of exceptions. We must assume that it was correct in law and what was called for by the case.

I am of opinion that no error was committed by the court of Oyer and Terminer, and that the judgment ought to be affirmed.

delivered an opinion concurring in all points with the preceding. In respect to the exceptions to the charge, regarding the corroboration of the witness, McDermott, he said: In criminal trials, where the testimony of accomplices has been resorted to to procure conviction, it has been customary for judges presiding at the trial to instruct juries that it was ordinarily unsafe to convict upon the unsupported and uncorroborated evidence of the accomplice. Such instructions, however, have been merely

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advisory. It was always competent for a jury to predicate a verdict of guilty on such testimony, and it would be their duty to do so, provided his manner of testifying and the probability and consistency of his story carried conviction to their minds that he had testified truly, and such testimony, if true, would prove the guilt of the accused. The true rule on that subject was laid' down by Mr. Justice Beardsley, in People v. Costello ( 1 Denio, 83 ). He says: “ His (the accomplice’s) statements are to be received with great caution, and the court should always so advise; but, after all, if his testimony carries conviction to the mind of the jury, and they are fully convinced of its truth, they should give the' same effect to such testimony as should be allowed to that of an unimpeached witness, who is in no respect implicated in the offence. Such testimony will authorize a conviction in any case. The court should certainly advise great caution on the part of the jury, where the prosecution depends upon the uncorroborated evidence of an accomplice; but they are not to be instructed, as matter of law, that the prisoner must in such case be acquitted.”

In this case the jury were instructed that the evidence of the accomplice was not sufficient to convict the prisoner, unless corroborated by other evidence, but that the evidence of Mr. and Mrs. Harrison, and of Mrs. McDermott, the wife of the accomplice, should be taken into consideration as corroborating the accomplice; and it is insisted that as the testimony of these witnesses did not in any way connect the prisoner with the commission of the crime, they did not corroborate the accomplice on a material point necessary to be established in order to produce a conviction, and that the testimony of a wife is no corroboration of that of her husband. As is above shown, it would not have been error, and the prisoner would have had no legal cause of complaint, if the jury had been instructed that they could convict on the uncorroborated evidence of the accomplice. Harrison

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and wife did corroborate McDermott in a material part of his testimony, that is, as to the commission of the crime. Judges have advised juries that such corroboration ought not to be deemed sufficient to warrant a conviction; that the corroboration should extend to the identity of the prisoner as being connected with the crime. But one on trial for a criminal offence has no legal right to require such instruction to be given, any more than he has to require the instruction that any corroboration is necessary. When such advice or instruction is given, it is done as a matter of grace and favor to the accused, and he has no right to dictate the manner or form in which it is done. The jury in this case were not instructed that the evidence of Harrison and of his wife, and of McDermott’s wife, was a sufficient corroboration of McDermott. The charge was, that their evidence should be taken into consideration as corroborating him, leaving its sufficiency to be passed upon by the jury.

It has been said that the testimony of the wife of an accomplice is to be regarded but as the testimony of the accomplice himself, the husband and wife being considered in law as but one person (Rex v. Neal, 7 Carr, & Pa., 168); but there can be no error in advising a jury that, in determining the credibility of the testimony of the husband, they may take into consideration that of the wife, and nothing more was done in this case.

I think there was no error, either in the charge as given or in the refusal to charge as requested.

All the judges concurring,

Judgment affirmed.