p. 334“And whereas, in truth and in fact, the pretenses and representations so made, as aforesaid, by the said Charles H. Laurence, to the said Lockport Street Railroad Company, were them and there in all respects utterly false and untrue, as he, the said Charles H. Laurence, at the time of making the same, then and there, well knew.
“And the said Charles H. Laurence, on the day and in the year aforesaid, at the city of Lockport, within the said county of Niagara, aforesaid, in the manner and form aforesaid, and by the means aforesaid, obtained from the possession of the owner thereof, the said Lockport Street Railroad Company, the said' two horse cars, numbered respectively seven (7) and eight (8), of the worth and value of $375 each car, with intent to deprive and defraud the true owner, the said Lockport Street Railroad Company, of its property, and of the use and benefit thereof, and to appropriate to the use of him, the said Charles H. Laurence; and the said two horse cars, he, the said Charles H. Laurence, from the possession of the true owners thereof, the said Lockport Street Railroad Company, by means of false pretenses and representations so made as aforesaid, feloniously did steal, take and carry away, contrary to the form of the statute in sudh case made and provided, and against the peace of the People of the state of New York and their dignity.
“District Attorney of Niagara County.”
The defendant was convicted of larceny, and upon appeal to the general term the court reversed Ms conviction, and directed his discharge. The district attorney then brought tMs appeal. ■
P. F. King, dist. att’y, for appellants.
Richard Crowley, for respondent.
In the early history of English’ jurisprudence ai prisoner came to Ms trial under great disadvantages. He was not permitted to have counsel, or witnesses, or a copy of the indictment, and hence very technical rules were evolved for the construction of indictments and the conduct of the trial, and thus a prisoner was now and then enabled to make a successful
p. 335defense. But for many years more humane views of the condition and rights of persons charged with crime have come to prevail, and now a person indicted proceeds to his trial under greater advantages than he would possess if he were defending < a civil action. Hence, the technical rules which in ancient times •' frequently served a useful purpose have been greatly relaxed, indeed, entirely abrogated. By our Code of Criminal Procedure all forms of pleadings in criminal actions before existing were abolished, and the sole requisite of an indictment,, besides the formal parts, is that it shall contain “a plain and concise statement of the act constituting the crime, without unnecessary repetition.” Code Grim. Pro. §§ 273, 275. And it is. declared that the indictment is sufficient if the act or omission, charged as the crime is plainly and concisely set forth and stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the rights of the case. Section 284. To sweep away all mere technicalities it is provided in section 684, that “neither a departure from the formor mode prescribed by this Code, in respect to any pleadings or proceedings, nor an error or mistake-therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right,” and, then, in section 542 it is provided that after hearing-■the appeal from a judgment of conviction “the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
In all criminal proceedings the People, as well as the defendants, have rights, and the foregoing statutory rules should he fairly enforced and administered, so as to foster the public-policy which they embody, and to serve the ends of criminal justice.
Larceny is defined in section 528 of the Penal Code so as to include not only the offense as constituted at common law and under the Revised Statutes, but also embezzlement, obtaining-property by false pretenses and the felonious breach of a trust. To constitute larceny it is not needful that the property stolen should have been taken from the possession of the owner by a trespass; hut if a person obtains possession of property from
p. 336the owner for a special purpose by some device, trick, artifice/ fraud or false pretense, intending at the time to appropriate ít¡ to his own use, and be subsequently does appropriate it to his* own use, and not to the special purpose for which he received it, he is guilty of larceny. And so it has repeatedly been held.
Smith v. People, 53 N. Y. 111 ; Loomis v. People, 67 id. 322; People v. Morse, 99 id. 662. In such a case it is essential for the People to show not only that the person obtained possession of the property in that way, but that he did animo1 fnrandi, with the intention at the time of subsequently appropriating it to Ms own use.
The People do not claim that the indictment shows a larceny by obtaining property by false pretenses, because the pretenses were in their nature promissory. But they claim that by certain false pretenses the defendant, intending at the time to appropriate the two cars to his own use, obtained possession of them from the owner for a special purpose, and that he did subsequently convert and appropriate them to- Ms own use, and thus committed larceny. There can he no doubt that the facts thus claimed constitute larceny. The question for us to determine now is Whether the indictment charges the crime of larceny in compliance with the requirements of the Code of Criminal Procedure? It would have been sufficient if the indictment, without setting forth the false pretenses, had alleged -the commission of the crime of larceny in the form formerly used in common law. indictments. And such was the form of the indictments in the cases above cited. The crime being properly -charged in such an indictment, the facts constituting it could he proved upon the trial. People v. Dumar, 106 N. Y. 502 ; 11 St. Rep. 19 .
A careful reading of this indictment leaves no doubt upon ■our minds that it does state the act constituting the crime-. It Charges that the defendant made the false representations and pretenses to obtain the possession of the cars from -the owner for the special purpose alleged, with the intent at the time feloniously to deprive the owner of the cars and to appropriate them to his own use, and that after thus obtaining them h-e did appropriate them to Ms own use, and that by means of the false pretenses and representations alleged he did feloniously steal,
p. 337take and carry away the two cars. There averments contained every element requisite to- constitute the crime of larceny. In the opinion pronounced at the general term it is intimated that the indictment would have been good “if it anywhere charged the defendant with obtaining possession of the property by, means of the alleged false pretenses, and afterward, with felonious intent, appropriating it to his own use.” It is very plain that the indictment does so charge. It is further stated in the •opinion as follows: “There is the charge that the defendant obtained possession of the property by the false pretenses and representations alleged; but this is coupled only with the charge that possession was thus obtained with the intent to appropriate it to his own use, and there is nowhere the allegation that after •so obtaining the possession, he did actually so appropriate it.” The learned general term must have been under some misapprehension, because the indictment plainly charges that after the defendant by the false pretenses and representations alleged, obtained the possession of the cars, he sold the said two cars and appropriated the proceeds thereof to his own use and benefit.” It is, therefore, impossible, we think, to say that the ■crime of larceny is not found in the language used in the indictment.
It is not a legal ground of attack upon this indictment that it contains more than was necessary under the provisions of ■the Code. It has always been the rule that surplusage no more vitiates an indictment than a pleading in a civil action. Lohman v. People, 1 N. Y. 379 ; Dawson v. People, 25 id. 399 . While it was unnecessary for the People to set forth in the indictment the pretenses by which the defendant obtained possession of the property, the allegations in reference thereto' instead of being harmful must 'have been beneficial to Mm, as they enabled1 Mm to know before the trial the precise facts upon which the People relied to prove the larceny. The indictment contains a plain statement of the acts constituting the crime without any repetition, and while it is not as concise as it might have been, yet so long as it is not so prolix as in any way to prejudice the defendant in making his defense, he cannot urge the prolixity as a ground for the reversal of conviction.
We are, therefore, of opinion that tMs indictment, tested by
p. 338itihe rules prescribed in the Code of Criminal Procedure, or by those which previously existed, was sufficient to authorize the conviction of the defendant for the crime of larceny, and that the general term erred in reversing the conviction and discharging the defendant on the ground of the insufficiency of the indictment.
But it does not, however, follow that we should reverse the judgment of the general term and affirm the conviction. We think there was some evidence for the consideration of the jury tending to establish the crime charged. We express no opinion as to the weight of the evidence, as that is not within the province of this court.. The defendant had the right to have his case reviewed upon the evidence, at the general term", and that court, in the exercise of its discretion, could grant the defendant a new trial if it believed that the conviction was against the weight of evidence, or that justice required a new trial.
. To the end, therefore, that the general term may exercise its discretion upon the evidence, iits judgment should be reversed and the case remanded to that court for a further hearing.
All concur.