People v. Smith — 67 N.Y. St. Rep. 670

Majority

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The People, Resp’t. v. William Smith, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 14, 1895.)

Headnote

1. Lakceny — Complaint.

An allegation in the complaint of taking money out of the drawer of the . complainant’s store is equivalent to the charge of taking it out of the possession of complainant, who must be deemed, within the language of section 528 of the Penal Code, the true owner.

2. Witness — Child—Obiminal cases.

It is discretionary, with the court to permit a child under the age of twelve years to testify in a criminal case, but, upon its uncorroborated testimony, the defendant cannot be convicted.

Appeal from a judgment of conviction for larceny.

Clark L. Jordan, for app’lt; L. F. Fish, Dist. Atty., for the People.

The complaint upon which the warrant against the defendant issued was in writing and under oáth, and was as follows:

“That one William' Smith, at the town of Mohawk, in the county of Montgomery, aforesaid, on the 29th day of September, 1894, did feloniously, wrongfully, unjustly, unlawfully, wickedly, willfully, corruptly, falsely, maliciously, and knowingly violate sections 528 and 532 of chapter 676 of the Laws of the state of New York passed July 26, 1881, entitled ‘An act to establish a Penal Code,’ as amended 1882, 1883, and amendatory thereto, in that, at-the time and place aforesaid, he did take from the money drawer of said deponent’s store the sum of $8 in money, being lawful ' money of the United States of America, consisting of greenbacks or paper money, national or bank bills, of the following denomination, to wit: One $5 bill; one $2 bill; and two $1 bills."

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Upon this complaint the magistrate issued his warrant, on which the defendant was arrested, and brought before him, and, without the advice of counsel, pleaded not guilty to the charge; whereupon the trial was adjourned until a future day, at which time the defendant appeared in person and by his attorney; and objected in various ways to the form of the proceedings, and to the jurisdiction of the magistrate, which objections were overruled. The defendant then withdrew his plea of not guilty, and asked and obtained permission of the court to cross-examine the complainant for the purpose of ascertaining whether or not the complaint was made on information and belief, or on her own knowledge. On the examination of the complainant by the defendant’s counsel, it appeared that she left the store with the money alleged to have been taken in the money drawer, with two or three people in the store when she left, but that the defendant was not at that time in the store ; that on her return she met the defendant going from the direction of the store, and that, on going into the store, she found that the money in question was not in the drawer; that she did not see the defendant take the money, and all that she knew about it was what she was told by two persons in the store at the time. On this proof, the defendant’s counsel moved for the discharge of the prisoner, on the ground that the complainant had no personal knowledge of the statement contained in the complaint. That motion was denied, and the defendant thereupon entered a plea of not guilty. The case was tried before a jury, and at the conelussion of the people’s evidence, the defendant’s counsel moved for the discharge of the prisoner, and that the court direct a verdict of not guilty, on the following grounds:

“(1) Ño crime has been established; (2) that no competent evidence has been produced showing that the defendant has committed any crime ; (3) that the complaint nor the warrant nor evidence does not show to whom the property claimed to have been stolen belonged; (4) that the ownership of the money in question is neither alleged or proved ; (5) the warrant of arrest in this case does not describe a crime, as required by law.”

The court denied the motion, and the case was submitted to the jury, who found the defendant guilty.

The appellant now insists that the complaint, warrant and proof are insufficient to charge him with the commission of the crime of larceny, and that it was error on the part of the magistrate to refuse to direct the jury to find the defendant not guilty.

The first point urged here is that the complaint on which the warrant issued was insufficient to give the justice jurisdiction, as the same was wholly on information and belief. An inspection of the complaint shows that the original information was positively stated and sworn to by the complainant, and not on information and belief. Clearly, that was, in that respect, sufficient to give the justice jurisdiction of the person and subject-matter, and authorized the issue of the process by him, at the time of its issue by him.

But it is insisted that by the cross-examination of the complainant, after the warrant was issued, and while the defendant was in

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custody under it, before the magistrate, it appeared that her only knowledge was information derived from others, except the fact that the money alleged to have been stolen was in the money drawer when she left the store, and was not there on her return, and that she met the defendant on her return to the store, going in a direction from the store. We think the facts known to her and sworn to by her were sufficient to establish the wrongful taking of the money by some person not entitled to the same, and the information disclosed by her on the cross-examination is, we think, a sufficient disclosure of her source of information to justify her in making the complaint. No constitutional or legal right of the defendant was violated in issuing the warrant on the complaint or information in this case, unless the omission to state the name of the true owner of the money alleged to have been stolen renders the information, warrant, proof, and conviction erroneous.

Pen. Code, § 528, defines larceny as follows:

“A person who with intent to deprive or defraud the true owner of his property, or the use and benefit thereof, or to appropriate the same to the use of the taker or any other person, * * * steals such property, and is guilty of larceny.” ■

I think, for the purposes of this prosecution, the allegation of taking the money out of the drawer of the complainant's store is equivalent to the charge of taking the money out of complainant’s possession ; and that, as against a wrongdoer’, she must be deemed, within the language of the section above quoted, the “ true owner.”

It is also urged that this conviction should be reversed for the reason that it was upon the unsupported evidence of a child under twelve years old, in violation of the provisions of section 392 of the Code of Criminal Procedure. The only witness who testified to the fact of the taking of this money by the defendant was the seven year old son of the complainant. He was, after an examination by the magistrate, in the exercise of the discretion of the magistrate, given by that section of the Criminal Code, permitted to be sworn, and testified that the defendant took money from this drawer. In such case the judge or magistrate is vested by that section with a discretion to swear the child, or to receive his unsworn statement. In the exercise of that discretion, he administered the oath to the boy, and took his sworn testimony. That was not error, but the proper exercise of a discretion ; but, upon that evidence alone the defendant could not be convicted. Was he corroborated, so as to make his evidence competent to be considered by the jury ? We think he was. As to the question of the presence of the defendant in the store he is corroborated by the testimony of the clerk, who went, while the defendant was there, into the meat market, and also by the testimony of Norman and Orson Sweet. He was also corroborated upon the question of money being taken, by the complainant, who missed the money immediately on her return to the store.

Upon all of this evidence, a question of fact was presented'and the jury, upon such evidence, having found that the defendant

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was guilty, we see no reason for reversal of the judgment of conviction entered upon this verdict.

Conviction affirmed.

All concur.