People v. Green — 1 Wheel. Cr. Cas. 152

Majority

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The People vs. Martha Green, Mary Ann Tompkins, and Eliza Hays.

Headnote

Where there coup inanhi dictment,char C. with recegoods know1 ing they were the evidence is, that A. recetved some,of them, at a hisTncompetent for the ney to° prove the reception of the other part of the goods by B. and C. at another time.

Receiving stolen goods, knowing they’ werestolen.

The prisoners were put in the box, charged with receiving, knowing they were stolen, 20 Leghorn hats, 2 pieces of gingham, 1 piece of cotton shawls, the property of Mr. Norsworthy, on the 15th of December, 1822.

Mr. Norsworthy testified, that he had lost the articles mentioned in the indictment, about the last term of this* court, but at v/hat period they were stolen, he could not teip jje pac[ found them at different places in the city, and from circumstances that had since come to his knowledge, he had no doubt they were stolen by Ann YanderHilt, a black servant girl, who resided in his family.

Eliza Mellis was called, and proved that she kept a Hrolcer’s office in Chatham street; that each of the prisoners had been at her house, and had sold or pawned her

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some of the'articles specified in the indictment, at different times, and recognized each of the prisoners, as having, sold her part of the articles.

The court in-Ann Vanderbilt was called and sworn. structed tier she was not compelled to answer any ques- . , .... , tion that would criminate her, or even to answer any question at all; and directed Mr. M’Ewen to advise with in order that no advantage might be taken of her ignorance.

Upon her consenting to answer any question put to her, the court directed the examination to proceed.

She testified, that she was a servant in the family of Mr. Norsworthy, and had, at different times, taken the articles out of Mr. Norsworthy’s store, and had given them to Eliza Hays, the prisoner ; that she had taken them at her request; that Eliza Hays told her to steal and bring her the articles which she mentioned; in accordance with this request, she did steal, and bring hef the articles mentioned in the indictment; that JBliza Hays had received all of them, but it was known by each of the other prisoners that they were stolen, and that they received part of them.

Maxwell, District Attorney,

was going on to prove the receipt of part of the articles by Martha Green and Mary Ann Tompkins, at sundry times, from the hand of Ann Vanderbilt, when Price objected, that there was but one count in the indictment; that on a charge against the prisoners, of a specific act, it was incompetent for the District Attorney to show a different one, in order to prove the reception of some of the articles by Martha and Mary Ann.

The court were of opinion, that he counsel for the prosecution ought to be confined in his proof to the charge as laid in the indictment.

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'Maxwell consented, and proceeded in the examination 0f the witness. She testified, that she would not have stolen the goods, had she not been advised to it by the Prisoner i that she had stolen them at different times, but always at the request, and with the advice, and under the of the prisoners, and had, immediately after the taken the articles to Eliza Hays, who divided them with Martha and Mary Ann.

Price and Fay now took an exception to the indictment on another ground: they contended, that by the evidence now before the court, it clearly and satisfactorily appeared, that the prisoners were either guilty with the witness as principals, or accessaries; that by the testimony of the witness, the prisoners had directed and advised her to commit the felony ; that they had received, and for their use, all the articles stolen ; that an indictment for receiving stolen goods, 'knowing they were stolen, could not be supported, where, by the evidence it appeared that the party counselled and advised the act.

Maxwell replied, that he admitted the rule of law, as contended for by the counsel for the prisoner, but insisted that this case was not within the operation of the principle; that the-evidence did not support the principle taken for the prisoners ; that he held the law to be, that if one tells another to steal the goods of some third person, without specifying what particular kind of goods, he is not guilty of larceny, nor can he be proceeded against either as principal or accessary, but if the particular kind of goods be specified, he admitted it would be felony.

The court was of the same opinion, and intimated they would so charge the jury.

The counsel for the prisoners replied, that it appeared by the evidence, that the felony was committed by ...the ex

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press direction of one of the prisoners; that she liad'told Ann to steal certain goods, naming them ; that if it was a larceny in Ann, it was also a larceny in the prisoners ; that the misdemeanor of receiving stolen goods, knowing they were stolen, was merged in the felony; and that the defendants were found guilty on this indictment, they might be arraigned and tried on an indictment for larceny; and that, upon such arraignment, they could not plead autre fois acquit, but would be remediless. The counsel contended, that, by the evidence now before the-court, an indictment, either as principal or accessary to larceny, might be supported.

The Court observed, this was a second Croke’s case, where the counsel for the prisoners, in order to free their clients from 'the responsibility of a crime' were obliged to plead a higher one. The Court observed, that it was matter proper for the consideration of the jury; and, after recapitulating the facts of the case to the jury; left it for them to say whether, under all the circumstances, the prisoners were guilty or not guilty: observing, that if there was any weight in the objections raised by the counsel for the prisoners, they would have the ben'efit of it.

They were found guilty, and were sentenced to the Penitentiary for the term of three years.