People v. Willett — 1 N.Y. St. Rep. 384

Majority

p. 384

People v. Willett.^[1]

(Court of Appeals,

Filed April 13, 1886.)

Headnote

1. Indictment—Homicide—Murder while engaged in commission of

felony—Grand larceny.

An indictment which aimed to allege a murder perpetrated while engaged in the commission of a felony,—grand larceny,—and in such indictment the property was specifically described, its ownership alleged, and its . alue stated at a sum greater than twenty-five dollars, the theft then being averred in these words: “ Did feloneously steal, take, and carry away,” suffi-

ciently alleges the commission of an attempt to commit the crime of grand larceny.

2. Same—Common law form of indictment. ,

Where two of the nine counts not demurred to were the ordinary common law counts: Held, that they would be sufficient, as a pleading, to sustain a conviction, and, the verdict being a general one, the conviction must be confirmed, irrespective of the question whether the first three counts were defective or not.

Appeal from judgment of general term supreme court, third department, affirming a judgment of a court of oyer and terminer, held in Ulster county, in December, 1884, convicting the defendant of murder in the first degree.

William Lounsbury, for appellant.

A. T. Clearwater, for respondent.

This appeal brings up the record alone, and raises merely a question of pleading. The indictment contains nine counts, each charging the prisoner with the crime of murder. To the first three a demurrer was interposed, upon the ground that they did not sufficiently charge the commission of the crime. They aim to allege a murder perpetrated while engaged in the commission of a felony, or in the attempt to commit it; the felony intended being the crime of grand larceny. The defects pointed out are omissions asserted to be necessary to a correct statement of that offense, and consist in a failure to charge the particular intent essential to the crime, and to describe it as grand larceny, so as to make it a felony. In the indictment the property stolen is specifically described, its ownership alleged, and its value stated at a sum greater than twenty-five dollars. The theft is then averred in this form: “ Did feloniously steal, take, and carry away.” This language is. identical with that used in Phelps v. People ( 72 N. Y., 350 ), where it was held a sufficient averment of the crime of' grand larceny, and in the precise words of the statute. The

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use of the word “feloniously” was deemed a sufficient averment of the intent necessary to constitute the crime, and the value of the property taken was a sum larger than twenty-five dollars, which fact was pleaded by alleging the full value. We do not think this authority is made inapplicable by the later definitions of the Penal Code (§ 528.) That section defines with considerable detail what acts shall constitute larceny, and what intent shall characterize the crime, and in the end provides that he who, with such intent, does any of such acts, “steals such property, and is guilty of larceny.” The word “steals” is thus defined by the statute itseÉ as covering all the prescribed details, and its use in the indictment which charges the taking to have been felonious, or with a criminal intent, sufficiently in- . cludos the particular intent needed to constitute the larceny. It was not in the least difficult for the prisoner to understand from the indictment the nature of the crime with which he was charged. We think the pleading sufficiently alleged the commission of or attempt to commit the crime of grand larceny.

There is another answer to the argument in behalf of the prisoner. His demurrer was overruled, and at the close of the trial a general verdict of guilty was rendered. That verdict should be sustained if any count in the indictment is good (Phelps v. People, 72 N. Y., 365 ; Hope v. People, 83 N. Y., 424 ), and the demurrer to the first three leaves the remainder unassailed and without objection. Two of these are the ordinary common law counts which through all the mutations of the statutes defining the crime of murder, and discriminating between its different degrees, we have held to be sufficient as a pleading to sustain a conviction. We have so recently and so fully discussed the subject that a repetition of our views is not needed. People v. Conroy, 97 N. Y., 62 . Those counts being good, and the verdict a general one, the conviction must be affirmed, irrespective of the question whether the first three counts were defective or not.

The indictment largely follows old precedents, whose involved efforts at precision, and profuse and awkward verbiage, leading to objections of the most technical character, and opening doors to acute and refined criticism, it was the purpose of the Code of Criminal Procedure to reform. The reformation wins its way slowly, but it is our duty to support it when sufficiently attempted, and to encourage the desired result. To sustain the common law form of an indictment for murder has been the steady ruling of the courts through all changes of definition and of practice, and we see no reason to depart from that policy unless by safe

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and prudent steps to permit that form, when used, to be further simplified, and brought more nearly to the standard prescribed by the Code.

The judgment should be affirmed.

All concur, except Rapallo, J., absent.