People v. Wiley — 10 N.Y. Crim. 231

Majority

p. 231

Supreme Court-General Term-Fifth Department.

October 21, 1892.

PEOPLE v. COLUMBUS WILEY.

( 48 St. Rep. 498 .)

Headnote

1. Larceny—Jurisdiction.

Where the defendant, who lived adjacent to a stream which formed the county line, proposed to a boy who had escaped from prison that he should steal a horse in another county, and gave him an envelope on which was marked the route he was to take, and the boy took the horse and was met by defendant a short distance from the barn, who g-ave him a bridle and helped him to mount, the defendant is guilty as a principal.

2. Same.

In such case, the grand jury of the county in which the theft took place has jurisdiction to find an indictment.

3. Same—Accomplice—Corroboration.

Where the particular testimony against the defendant is that of the boy, but there was proof that the boy was at defendant’s house, that defendant told the boy’s cousin to tell him to come, that the envelope was found after the boy’s departure, and the writing on it was the defendant’s, these facts are sufficient to corroborate the boy’s testimony.

Appeal by the defendant from a judgment of the court of sessions of Cattaraugus county, convicting him, of the crime of grand larceny in the second degree.

p. 232

C. Z. Lincoln, for appellant.

J. H. Waring, for respondents.

The defendant was indicted by the grand jury of Cattaraugus county of the crime of grand larceny in stealing a horse of one Perkins, in the town of Ashford, in that county. The defendant lived in Springville, in Erie county, near the Cattaraugus creek, which separates the two towns and counties, and the barn of Perkins, from which the horse was taken, was near the creek on the other side. A boy of sixteen years of age, who had lately escaped from the State Industrial School in Rochester, had come, in Ms flight, to the house of a relative who lived in Springville,. and his presence there, and the fact that he was a fugitive from justice, had come to the knowledge of Wiley, the defendant. The boy testifies that ¡he went on Saturday night to the house of Wiley, who lived entirely alone, to ask for the loan of a horse to ride to his home in Wyoming county, when, as he testifies, Wiley proposed to Mm 'to steal Perkins’ horse, offered to give him five dollars if he would do it, and threatened that if he would not he would give ¡him up to the authorities at Rochester.

■ He testifies that Wiley at that time traced, on an old envelope, the direction -of the road which led from that place to Java Labe, in Wyoming county, indicating the location of two cross ■roads, one at the forks of the Cattaraugus creek, and one at ¡Yorkshire Comers, and also of the village of Arcade, all of ¡which points he must pass on his route, and that Wiley wrote the words “Porks” and “Yorkshire” at the appropriate points on the little map, as those words appeared on the paper which was in evidence on the trial. He testifies that he took the envelope with him when he returned to his aunt’s house that night, after he had promised Wiley that he would come the next night (Sunday) and fake the horse. He testifies that he failed to keep that appointment for a reason stated, and that ¡on Tuesday Ms cousin, a little daughter of the aunt with whom, he was staying, brought him word from Wiley that the latter ■wanted to see him that night; that he went to Wiley’s house Tuesday night in response to that message, and under Wiley’s

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directions went -over the oreek to Perkins’ barn, took out the-•horse, led him across a field to a highway on the Cattaraugus side of the oreek, where he was met by Wiley, who took the •halter from the horse, put on a bridle of his own, helped the boy to mount, and sent him on his way.

This statement plainly meets the objection of the defendant to the jurisdiction of the grand jury of Cattaraugus county to find the indictment, arad of the court of sessions of that county to try the indictment. Even if the participation of the defendant in the crime had been confined to the fact of counseling induced its commission, that made him by express definition of the present statute a principal in the crime. Penal God-e, § 29. So that, although the counseling and inducing to-the crime were done in Erie county, yet the overt act being-committed in Cattaraugus county, the defendant as a principal in the crime, was properly indicted and tried in the latter' county. But the statement shows that the defendant was also personally present aiding and abetting in the commission of theicrime in Cattaraugus county. The act of larceny was not ended when the horse was taken from the barn, but continued at every step of Ms removal therefrom, and in this the defendant was am active participant on the Cattaraugus side of the line.

The testimony so far stated was all from the mouth of an accomplice in the crime. It was necessary to the conviction of the defendant that this testimony should be “corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” Code of Criminal Procedure, § 399. The corroborative evidence in this ease seems to us ample to meet the requirement of this statute.

It was mainly as follows: One witness testified that he called at Wiley’s bouse on the Saturday night mentioned by the principal witness and found Mm and the defendant alone together, and saw a paper lying on the table between them which he believed to be the one in evidence on which the route of the boy was traiced. Several witnesses gave evidence tending to show that the words “Forks” and “Yorkshire” on that paper were in the defendant’s handwriting. The young girl mentioned by the principal witness testifies that on Tuesday afternoon the defendant met her on her way home from school and told her-

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*0 tell that little fellow, her cous-in, to come up to his house that night, that he wanted him; that she delivered the message and the boy went away that evening after supper. The aunt of the principal witness testified that after he went away from her house she found the envelope on which the little map was drawn, in the room in which he had slept. And there was evidence that the fresh tracks of two persons, apparently a man ■and a boy, with.those of a horse, were found the same evening that the horse was taken, at the point where the principal witness testified Wiley met Mm and helped Mm on to the horse’s back.

The probative force of the corroborative testimony is not in -question; it is only necessary that it should tend, in any degree1, to connect the defendant with the commission of the crime; and it then becomes a question for the jury whether, with such corroboration, the testimony of the accomplice is entitled to credit and establishes the guilt of tibe accused.

It seems very clear that neither of the objections to the judg- , ment, which have been discussed, are tenable, and no 'Others are presented in the argument in support of this appeal. The judgment should he affirmed.

Judgment and conviction appealed from affirmed," and the case remitted to the court of sessions of Oattaraugns county to proceed thereon.

MACOMBER and LEWIS, JJ., concur.