People v. Christy — 47 N.Y. St. Rep. 924

Majority

p. 924

The People, Resp’ts, v. Albert Christy, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.)

Headnote

1. Malicious mischief—Penal Code, §§ 654, 655, 660.

The offense of wilfullv killing a horse or other animal by poison is punishable by indictment under § 654 of the Penal Code. It is not the intent of the statute to exclude from the operation of that section all acts that might possibly be included in §§ 655 and 660.

2. Witness—Evidence.

A witness who was charged with being an accomplice having testified to. the effect that defendant procured the poison to be administered, and having stated that he did not know that there was any understanding with the-district attorney that he would not be prosecuted if he stated the matters-which he did, was asked if he understood that by making the statement he would relieve himself from prosecution, which question was excluded. Held, error; that it was competent and material as affecting his credibility.

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3. Same.

Said witness testified that on two occasions, in the middle of May and. about ten days later, he purchased arsenic for defendant; the latter date he fixed by saying that he saw an account in a newspaper that complainants’’ horses were dying. He was sick during June and July. Defendant offered to show that no such article appeared in that paper during April, May or June. Held, that such proof was admissible on the question whether he made such purchase before the horses died, and that its rejection was error.

4. Same.

Where the defendant is not a witness, evidence that he kept a place of bad character is inadmissible even though offered only as bearing on the character of one of his witnesses.

5. Criminal law—Evidence.

It is competent to show against a defendant that he bore toward the party injured enmity of a sort te'nding to the criminal result.

Appeal from a judgment of the court of sessions of Herkimer county, entered June 1, 1891, upon a conviction of the defendant of the crime of unlawfully and wilfully destroying personal property of another.

In the first count of the indictment the defendant is accused “ of the crime of unlawfully and wilfully destroying personal property of another,” and it is specified that on .the 10th July, 1889, at a place named, the defendant did willfully, unlawfully, feloniously and maliciously, kill, destroy, and poison unto death, three horses, the personal property of the firm of Grilboy Brothers, and of the value of $175. In the second count the defendant is accused “ of the crime of wilfully and unlawfully destroying personal property of another, contrary to and in violation of § 654 of the Penal Code,” and the specification is substantially as in the first count, except the date is laid on 15th July, 1889. Upon the trial the defendant was found guilty as charged in the indictment.

J. D. Beckwith, for app’lt; Irving R. Devendorf, for resp’ts.

-—The defendant claims that the facts alleged in the indictment, and the evidence given upon the trial, do not constitute the crime of which the defendant was convicted, and that the indictment should have been dismissed.

By § 654 of the Penal Code it is provided that “ A person who unlawfully and wilfully destroys or injures any real or personal property of another, in a case where the punishment is not specially prescribed by statute, is punishable as follows: 1. If the value of the property destroyed, or the diminution in the value of the property by the injury is more than twenty-five dollars, by imprisonment for not more than four years. 2. In any other case, imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment”

The claim of the defendant is that the crime, if any,, is that of cruelty to animals, under § 655 of the Penal Code, or"§ 660: that, the punishment thereof is specially prescribed by those sections, and that therefore the case is not within the purview of § 654.

By § 655 it is, amohg other things, provided that a person who

p. 926

unjustifiably injures or kills any animal, or causes it to be done, is guilty of a misdemeanor. By § 660 it is provided that a person who unjustifiably administers any poisonous substance to an animal is guilty of a misdemeanor. By § 15 of the Penal Code it is provided that: “ A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both.” The inference from this section is that when by some other provision of the Code an offense is simply made a misdemeanor, the punishment is not considered as thereby “specially prescribed.”

By subd. 27 of § 56 of the Code of Criminal Procedure courts of special sessions have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors for cruelty to animals. It is not claimed that this case was brought before the grand jury by virtue of a certificate-under § 57 of Code Criminal Procedure. So that apparently if the theory of the defendant is correct, not only is the crime a misdemeanor simply, but the remedy by indictment is not proper.

Section 654 of the Penal Code is a part of chapter 14 of title 15. This title is “ Of crimes against property ” and chapter 14 is of “ Malicious mischiefs and other injuries to property.” The subject of “ Cruelty to animals ” is under another title, and relates rather to the manner in which an act is done than to an interference with the property rights of others. The term “ personal property ” used in § 654 cannot, as claimed by defendant, be construed to mean only inanimate property. For by the rules of construction furnished by the same Code, the term “ personal property ” includes chattels of every description. Penal Code, § 718, subd. 15. People v. Maloney, 1 Park. Cr., 593 ; 2 Black Com., 387.

Section 654 relates to hets “ unlawfully and wilfully ” done to ■the property of another, while §§ 655 and 660 relate • to• acts “ unjustifiably ” done without reference to the ownership. It looks reasonably clear that it is not the intention of the statute to exclude from the operation of § 654 all acts that might possibly be included in the other sections. By § 677 it is provided that an act or omission which is made criminal, and punishable in different ways by different provisions of law, may be punished under any one of those provisions, but not under more than one.

We are of the opinion that the court below did not err in •refusing to dismiss the indictment.

The horses in questions died about the 15th or 20th July, 1889, .and there is evidence tending to show that the death was caused by poison which the defendant procured to be administered. This in effect was testified to by the witness Grarlock, who, however, is •charged to have been an accomplice. He was, we think, corroborated by other evidence that tended to connect the defendant with the commission of the crime. Code Grim. Pro., § 399. In the -course of his cross-examination, after having testified as follows:

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“ I don’t know as there was any understanding between Mr. Harris and me, or the district attorney and me, that I would not be-prosecuted if I stated to him the matters which I did state,” he was asked the question: “ Did you understand, by making the statement which you did make, you would relieve yourself from prosecution? ” This was objected to and excluded and defendant excepted. This should have been admitted. Wharton Crim. Ev., § 477. It related to the position of the witness with reference to the complainant and the prosecuting officer, and was competent and material as affecting his credibility.

Garlock testified that upon two occasions, the first about the middle of May and the second about ten days afterwards, at the request of defendant, he purchased arsenic. The date of the second purchase he fixed by saying that before he got it he read in a. newspaper, the Evening Times, of Little Falls, a statement that a number of Gilboy’s horses were dying. The defendant offered to show that in the months of April, May and June there was in the paper referred to no account of the death of Gilboy's horses. This was excluded and exception taken. Garlock had testified that he was sick and confined to the house from the 1st June to-about the middle of July, which was about the time the horses in question were poisoned. If before Garlock was sick there was no-publication, it would reflect on the question whether he made any purchase before the horses in controversy died. The evidence should have been admitted.

Upon the cross-examination of one Horn, a witness for the defendant, the People were allowed to prove that defendant kept atIlion a place of bad character. This was admitted as bearing upon the character of the witness. Its natural and chief effect was, however, upon the character of the defendant and the People had no right to attack his character in that way. He was not a witness and had a right to all legal presumptions in his favor. Ho sufficient reason is apparent for the admission of the testimony. 1 Bishop Crim. Pro., § 1122.

The defendant and the Gilboy Brothers were competitors in business, and the People were allowed to prove to a considerable-extent the state of feeling between them. Among other things, they were allowed to prove in detail actual assaults upon two occasions. It is competent to show against a defendant that he bore toward the party injured enmity of a sort tending to the-criminal result. 1 Bishop on Cr. Pro., § 1109. Threats are admissible. Id., § 1110. In the present case it is at least doubtful whether the People were not permitted to go too far in this line. Be that as it may, the rulings upon the evidence above referred to cannot in their effect be deemed immaterial, and it follows that, the defendant is entitled to another trial.

Judgfnent reversed and a new trial ordered.

Hardin, P. J., and Martin, J., concur.