author: By the Court, Ingalls, J. Taunton, J.,

text:
    Supreme Court. Albany G-eneral Term.
    September, 1866.

      Miller, Ingalls and Hogeboom, Justices.
    Barney McCann, Plaintiff in Error, v. The People, Defendants in Error.
    Where a person is convicted, upon undisputed evidence, of a capital offense, and an indispensable element to constitute such crime is wanting, there being no proof in the case of its existence; the Supreme Court will reverse, on writ of error, although no valid exception was taken to any decision made at the trial or to the charge of the court.
    The prisoner was convicted of murder. The evidence showed the homicide was committed by stabbing the deceased with a knife, in immediate retaliation for insulting words and a violent blow struck tbie prisoner by the deceased. Held, that, in the absence of premeditated design, which was clearly wanting, the conviction was unauthorized and judgment was reversed.
    Error to the Columbia Oyer and Terminer, in which court the prisoner was tried and convicted of murder. The questions involved sufficiently appear in the opinion of the court.

      C. L. Beale, for the plaintiff in error.

      J. M. Welch (District Attorney), for the defendants m. error.
   By the Court, Ingalls, J.

At the Oyer and Terminer, held in and for the county of Columbia, in April, 1866, Barney McCann was tried and convicted of the murder of Edward Pye. The prisoner, with several others, met at the house of one Mrs. Eiley and indulged in drinking liquor. Pye was present, and a dispute arose between him and the prisoner in relation to some tobacco. The witnesses agree that McCann asked Pye for a chew of tobacco, which was refused. One witness states that Pye, in answer to the request, said, “I would sooner hit you in the face than give you a chew.” Another witness gives the- following version : 11 Pye said, Wo, you dirty Irish son of a bitch, get on to the floor and I can lick you.” Immediately after these words, Pye struck McCann and knocked him nearly or quite down, and McCann got up and immediately rushed towards Pye, making a thrust with a knife, which inflicted the fatal wound. The evidence shows clearly that the whole transaction occurred within a few moments, and that McCann could not have advanced more than six or eight feet when he administered the blow with the knife. Shaffer, a witness for the prosecution, testifies: “ The whole transaction occurred in about a minute; it was all right along.”

Stafford, another witness for the people, testified: “Did not see McCann fall; he went back three or foiir paces, and the next I saw, I saw him (McCann) coming with a knife. This was but a few moments after Pye struck McCann.” It is apparent that McCann was in a violent passion, amounting to a paroxysm of anger, induced by the insulting language of Pye, accompanied with a severe blow, which nearly or quite prostrated the prisoner. The evidence shows that the attack by Pye was wholly unprovoked by the prisoner, and that the injury was inflicted by McCann while he was in the heat of passion; induced by sudden, violent .and unjustifiable provocation. Under such circumstances it is unreasonable to conclude that time had elapsed sufficient for passion to cool, and reason to regain control, so that a premeditated design to take the life of Pye could have been formed; which is indispensable to constitute the crime of murder in the first degree. We are inclined to the conclusion that the prisoner might with propriety have been convicted of manslaughter in the third degree. Certainly not murder in the first degree. It may be well to examine some of the authorities bearing upon the questions presented, with a view to arrive at a correct conclusion in regard to the grade of crime which the evidence shows was committed {Wharton on Homicide,p. 35). “ Manslaughter at common law is of two kinds : 1st. Voluntary manslaughter, which is the unlawful killing of another without malice, on sudden quarrel or in heat of passion. When upon sudden quarrel two persons fight, and one of them kills the other, that is voluntary manslaughter. And so if they upon such occasion go out and fight in a field, for this is one continued act of passion. So, if a man is greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable homicide, not being se defendendi; neither is it murder, for there is no previous malice. In these and such like cases the law, kindly appreciating the infirmities of human nature, extenuates the offense committed, and mercifully hesitates to put on the ' same footing of guilt the cool deliberate act and the result of hasty passion.”

( Wharton’s Criminal Law, § 922, fourth edition). ‘ ‘ Where the defendant, having been violently beaten and abused. ran to his house, eighty rods, got a Tcnife, ran back, and on meeting the deceased stabbed him, it was held but manslaughter.”

(§190.) “If on receiving such a deadly assault, he suddenly leave the scene of outrage, procure arms and in the heat of blood consequent upon the wrong, return and renew the combat and slay his adversary, both being armed, such a homicide would be but manslaughter. For the law from its sense of, and tenderness towards human infirmity, would consider that sufficient time had not elapsed for the blood to cool and reason to resume its empire over the mind smarting under the original wrong."

(§ 987.) “ Where death ensues, in heat of blood on immediate provocation, therehaving been no previous malice, the offense is manslaughter.”

(Same section.) “The indulgence which the law extends to cases of this description is founded on the supposition that a sudden and violent exasperation is generated in the affray so as to produce ar temporary suspension of reason— and that the transport of passion excludes the presumption of malice."

(Wharton on Homicide, page 186.) “ Any assault in general, made with violence or circumstances of indignity upon a man's person, if it be resented immediately by the death of the aggressor, and it appear that the party acted in the heat of blood upon that provocation, will render the crime manslaughter.”

Taunton, J.,

in Taylor's case defines manslaughter as follows : “ Manslaughter—homicide, not under malice, but when the blood is heated by provocation, and before it has time to cool.”

In rex v. Taylor (5 Burrows, 2793), after a quarrel an attempt was made to expel Taylor from the house—and he drew a sword and stabbed Smith, the deceased, and inflicted a mortal wound. The court, after deliberation,, pronounced it manslaughter. That case is often referred to with approbation. In the case of Rogers v. The People (15 Howard, 558), much of the reasoning of the court applies to the case under consideration, and some of the circumstances are similar to those in the case at bar. The homicide was committed under circumstances of much ' less provocation, and there is evidence in the case cited to the effect that only words preceded the fatal blow. In this case there is no conflict in the evidence. All the witnesses agree in saying that words and blows constituted the provocation. Judge Sutherland, in the case cited, remarks: “If the prisoner struck the fatal blow in the heat of passion, without the intention or design to kill, he was guilty of one of the degrees of manslaughter.” Again: “But the violent homicide for which the prisoner was tried had different degrees, depending on the intent to kill, or the absence of such intent. The statutory definition of two of the degrees of manslaughter implies, not only that a homicide committed in the heat of passion may have been committed without the intention to Mil; but that also such heat of passion is likely to prevent the reasoning, calculation, reflection or design implied by a particular intent.”

(The People v. Johnson, 1 Park. Cr. Rep., 291.) In this case the prisoner and the deceased engaged in a fight in the public highway, and the prisoner knocked the deceased down, and then took a large stone from a wall, and with both hands threw it upon the head of the deceased, breaking the skull and causing death. The prisoner was convicted of murder, and such conviction was reversed, and the reasoning of the court shows conclusively that the crime was regarded manslaughter and not murder. Barculo, J., says: “We suppose that an erroneous impression may thus have been produced upon the minds of the jury. We consider the second subdivision wholly inapplicable to a case where there is reason to believe that the killing was in the heat of passion, for such killing never was murder at the common law, and the revisers did not- intend to increase the cases of murder.” This remark of the learned judge bears with force upon the case at bar. In the People v. Clark (7 N. Y., 385), the court recognize the distinction between cases where there is a provocation and heat of passion, and where those features do not exist, in determining the grade of crime. The court say: “In the case before us, there was no provocation, no mutual combat, no heat of passion which the law can recognize.” Turning to the case at bar, we find all these features—mutual combat, gross provocation, and consequent heat of passion without time for such passion to cool, before the fatal thrust. The parties did not separate from the commencement until the termination of the affray. How can it be reasonably contended, under such circumstances, that there could be premeditation? If not, the case is wanting in an indispensable element to constitute the crime of which the prisoner was convicted. The jury must have misconceived the directions which they received from the court, for upon no •other reasonable hypothesis can we account for their verdict, which is in direct conflict with the facts proved, and the law which was correctly pronounced by the learned justice. There accompanied the verdict positive evidence of the reluctance with which it was rendered, in the written communication containing an unusually urgent appeal on behalf of the prisoner for the exercise of executive clemency. The judicial mind cannot apply the law to the undisputed facts of this case, and fail to be convinced that the prisoner has been convicted of a crime of which he was not guilty, and which stands wholly unproved against him. It might be insisted, certainly at least with plausibility, that the facts proved reduce the offense to manslaughter in the third' degree, as defined by section 12, •page 940, vol. 3, Revised Statutes, fifth edition, which is as follows: “ The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed manslaughter in the third degree.”

It is not pretended that there is evidence of express malice, and in my judgment it cannot be implied from the facts proved, and the law applicable thereto. And hence the design to effect the death of the deceased, as contemplated by the statute referred to, did not exist. Foster, in defining what constitutes implied malice, says: “And I believe that most, if not all, the cases which in the books are ranged under the head of implied malice, will, if carefully adverted to, be found to turn upon this single point: that the fact hath been attended with such circumstances as carry in them a plain indication of a heart regardless of social duty, and fatally bent on mischiefP There is not a fact in the whole case which proves the existence of those qualities in the prisoner. All who testify as to his general character and demeanor, speak favorably, and the history of the fatal affray shows that he was not the aggressor.

In the People v. Johnson (1 Park., 291), Barculo, J., says: “Thus it appears that by the terms of the statute the killing of a human being, in three specified cases, is murder, unless it falls within some of the inferior classes of homicide, from which we deduce the inference that if a case comes within any degree of manslaughter, it cannot be deemed murder, although it is accompanied by some of the circumstances which make up the latter crime”

The fact that the prisoner used a knife and death ensued," does not necessarily raise the presumption of malice, or that within the meaning of the statute there existed the design to effect the death of the deceased. This has been shown by the authorities which have been cited. When we reflect that there was a violent provocation, and almost instantaneously thereupon the fatal injury was inflicted by the prisoner, we may properly hesitate before declaring that the prisoner’s crime was not manslaughter in the third degree. It is, however, only necessary to satisfy ourselves whether or not the prisoner was guilty of murder in the first degree, and the other considerations are only important so far as they aid in determining that question, except possibly they may furnish some guide in a future trial. The reflection that the life of a human being is even jeoparded by the verdict of a jury, erroneously, although conscientiously, rendered, is revolting to every sense of justice and dictate of humanity, and calls upon the court to interpose on behalf of the prisoner, to the extent of its power, in the exercise of judicial discretion. It is said by counsel, in substance, that it was the province of the jury to determine whether there existed a premeditated design to effect the death of the deceased, and having rendered a verdict which implies such finding, this court is powerless to grant relief, although satisfied that such verdict stands unsustained by any evidence which even tends to prove the crime. We cannot give our assent to such a proposition. Suppose the jury had rendered a verdict in this case, pronouncing the prisoner guilty of treason, this court would not, I apprehend, hesitate a moment to set aside v such a verdict, and order a new trial. It may be said the case put is a strong one, and improbable—nevertheless it tests the power of the court to interpose, in the exercise of that general control which it possesses over its own records and proceedings. Conceding that the case is not unproved in every particular which enters into a conviction for the crime of murder, and yet the case is wanting in one indispensable element to constitute the crime, and that too which distinguishes murder from manslaughter, and upon which depended the life of the prisoner, viz: the premeditated design to take life. The record which we are to examine purports to contain all the evidence and proceedings had and taken upon the trial, and from it we perceive that the learned justice charged the jury, among other things,, that to constitute the crime of murder there must be some deliberation and ' premeditation preceding the act. That if in the heat of passion a man strikes a blow without intending to kill, and death follows, then it is manslaughter in the third degree. These instructions, as has been before remarked, were probably misconceived, by the jury, and as a consequence they rendered a verdict unauthorized by the law and facts of the case. If there were some evidence which tended to show premeditation, so that a conflict in the evidence was produced, a very different question would be presented for our determination. In this case the proposition is presented—whether, where a prisoner is convicted by the verdict of a jury upon undisputed evidence of a crime involving his life, and an indispensable element to constitute such crime is unsupported by any evidence tending to prove the same, this court has the power to grant a new trial. We are of opinion that such power exists, and that a case is presented where it should be exercised. (Hilliard on New Trials, page 353, § 36.)

It is really the determination of á question of law upon undisputed facts, where there is a clear failure of proof upon a material point, and not the ordinary application to set aside a conviction on the ground that it is against the weight of evidence. In Davis v. Spencer (24 N. Y., 390), Allen, J., remarks: “If there was no evidence the decision would be clearly erroneous in law.” This case has been considered upon the assumption that no error was committed by the learned justice, either in his charge to the jury, or in any ruling upon the trial. We are clearly of opinion that the conviction should be reversed and a new trial ordered.

Mzller and Hogeboom, JJ., concurred in the result.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    Supreme Court. Erie General Term.
    February, 1866.

      Grover, Marvin, Daniels and Davis, Justices.
    The People v. Ambrose H. Arnold.
    Entering the dwelling-house of another in the day time, through an open chamber window, with the intent to commit a crime, does not constitute burglary in the second degree, under the thirteenth section of the statute. To bring the case within that section, it is necessary to show, in addition, a breaking, in the night time, of an outer door, window or shutter, or other part of the house, to get out of the same.
    The true construction of that section is that the breaking out in the night time is necessary in all cases to constitute the offense provided for in that section.
    The prisoner was indicted at the Allegany Oyer and Terminer, in October, 1865, for the crime of burglary. The indictment contained four counts. The first two charged that the prisoner, on the 20th of September,
    1865, at West Almond, in said county, did feloniously and burglariously break and enter the dwelling-house of Abial ■ Weaver, there situate, with intent his goods and chattels to steal, &c. The second and third counts charged that the prisoner, at the same time and place, the dwelling-house of Abial Weaver, there situate, feloniously and burglariously did enter with intent to steal, &c., and in the last count the intent charged, was to commit some crime therein. Neither count in the indictment charged the prisoner with breaking out of said house in the day or night time. The prisoner was arraigned on the indictment and demanded a trial, and the court made an order, sending the same to the Court of Sessions for trial.
    The indictment was brought to trial at the "court house, in Angelica, in said county, on the 2d day of January,
    1866, before the Court of Sessions of Allegany County. On the trial the people gave evidence tending to prove that the prisoner, on the 20th day of September, 1865, at West Almond, in said county, entered the dwelling-house of Abial Weaver, in the day time, and about noon of that clay, through a back chamber window, which was open at the time, by being raised and left open, with intent to commit some crime in said house, and upon an alarm being given, passed immediately down stairs and unlocked the front door, which was locked, the key being on the inside of the door, and passed out about noon of said day and made his escape.
    After the district attorney rested the case for the people, .the counsel for the prisoner contended, 1st. That no offense had been proved under the statute defining burglary. The counsel for the people contended the case was brought within the 13th section of the statute.
    The counsel for the prisoner insisted the act proved' against the prisoner was not an offense under such section of the statute, and that if it was, then the counsel contended, 2d. That the indictment was defective in not charging the offense described in said 13th section of such statute. The court decided the acts proved against the prisoner, if done with intent to commit a crime in the house, did constitute a crime within the said 13th section of the statute, and that the indictment did sufficiently and properly charge the offense defined in said section. The counsel for the prisoner excepted.
    The jury found the prisoner guilty, and the case was removed into this court by certiorari.

      M. B. Champlain, for defendant.
    I. The act proved against the prisoner was, that in the day time he entered into the dwelling-house in question, with intent, &c., through an open window in the rear, passed through the house, unlocked the front door and went out about noon.
    The court decided that this act constituted the crime of burglary, described in the 13th section of the statute.

      At common law burglary consists only in breaking into a dwelling, or mansion house, with intent to commit a felony in the night time.

    ' It was settled that if there be daylight enough began, or twilight enough left, so the countenance of a person could be reasonably discerned, it is no burglary. And it was said “the malignity of the offense does not'so properly arise from its being done in the dark, as at the dead of night, when all the creation, except beasts of prey, are at rest, when sleep has disarmed the owner and rendered his castle defenseless.” (2d Russell on Crimes, p. 32; 2 Blackcstone’s Com., p. 224.)
    House-breaking in the day time was not burglary at common law. It is made so by statute in certain cases, not -important to be specified here to present the point. (People v. Fralick, Lalor’s Sup. to Hill & Denio R., p. 63. Butler v. The People, 4 Denio, p. 68.)
    ■ II. Though it was said to be the law that the entering into the house of a person without breaking it, with intent to commit some' felony, and afterwards breaking the house in the night time to get out was burglary; yet the doctrine was questioned by good authority, and it was thought expedient to remove the doubt by legislative enactment. This was first done by the statute 12 Anne Stat., ch. 7, § 3, now repealed by the 7 and 8 Geo. 4, ch. 27; and the statute 7 and 8 Geo. 4, ch. 29, § 11, contains the following enactment upon the subject, namely :
    “It is hereby declared that if any person shall enter the dwelling-house of another, with intent to commit a felony, or being in such dwelling-house shall commit any felony, and shall in either case, break out of the said dwelling-house in the night time, such person shall be guilty of burglary.” (2d Russell on Crimes, pp. 7 and 9.)
    The offense here described is the one intended to be defined by sec. 13, of thei Revised Statutes, which is as follows; “ Every person who shall enter into the dwelling-house of another by day or night in such manner as not to constitute any burglary hereinbefore specified, with an intent to commit a crime, or being in the dwelling-house of another shall commit a crime, and shall in the night time break any outer door, window, or shutter of a window, or any other part of said house to get out of the same, shall be adjudged guilty of burglary in the second degree.” (2 JR. /S'., _p. 947, 5th ed., § 13. See also the Revisers' notes.)

    This section describes two separate offenses:
    1st. Entering a dwelling-house without breaking, with intent to commit a crime, and breaking out in the night time.

    2d. Being in a dwelling and actually committing a crime, and breaking out in the night time.

    The construction by the court below only applied the words, “ and shall in the night time break any outer door, &c., to get out of the same” to the second act above specified, and not to both. 1st. By the fair and grammatical construction of the language of 'the section the words should be applied to both. 2d. The history of the law clearly shows that they apply to both. That the true construction of sec, 13 is the same as if it read precisely as the statute of the 7 and 8 Geo. 4, above quoted, from which this enactment was copied, and contained the language, “and shall in either case" break out of said dwelling-house in the night time.

    UL By the construction of the court below, a person who enters with an intention to commit a crime unexecuted, without breaking in or out in the night time, is made guilty of the same degree of burglary as the person who actually commits a crime in the dwelling-house and then breaks out in the night time.

    IV. By sec. 18, the breaking into the dwelling-house of .another, with intent, &c., in the day time, is made burglary in the third degree. This construction makes the act of entering in the day time with like intent without breaking, burglary in the second degree, a much graver offense than if the prisoner had actually broken into the dwelling.
    V. It is very clear that the court erred in holding the act proved against the prisoner a burglary under the 13th section of the statute, and it is not pretended that it is within any other.
    The conviction should be reversed.

      James S. Greene (District Attorney), for the people.
   Per curiam.

It is plain that the exceptions of the prisoner's counsel are well taken, and that the facts proved do not bring the case within the 13th section of the statute. The conviction tiannot be sustained.

Conviction reversed and new trial granted.


author: By the Court, E. Darwin Smith, J.

text:
    Supreme Court. Monroe General Term.
    December, 1865.

      Johnson, J. C. Smith and E. D. Smith, Justices.
    The People v. Eli H. Hall.
    On the trial of an indictment for rohhery, the question whether the act was done with a felonious intent is exclusively one of fact, to be decided by the jury.
    The mere snatching of an article of property from the person of another is not robbery.
    Form of an indictment for robbery.
    An indictment for robbery was found against the prisoner in the following words:

      State of New York, Livingston County, ss:

    The jurors of the people of the State of Hew York, in and for the body of the county of Livingston, upon their oath present:
    That Eli H. Hall, late of the town of Geneseo, in the county of Livingston aforesaid, on the nineteenth day of March, in the year of our Lord one thousand eight hundred and sixty-three, at the town and county aforesaid, with force and arms, in and upon one George F. Johnson, in the peace of the said people then and there being, feloniously did make an assault, and one cylinder escapement watch with composition cases, of the value of twenty-five dollars, of the goods, chattels and personal property of the said George F. J ohnson, from the person of the'Said George F. Johnson, and against the will, and by violence to the person of the said George F. Johnson, then and there violently and feloniously did rob, steal, take and carry away to the great damage of the said George F. Johnson, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present, that Eli H. Hall, late of the town of Geneseo, in the county of Livingston aforesaid, on the nineteenth day of March, in the year one thousand eight hundred and7sixty-three, at the town and county aforesaid, in the highway there, with force and arms, in and upon one George F. Johnson, in the peace of the said people then and there being, feloniously did make an assault, and him, the said George F. Johnson, in bodily fear and danger of his life in the highway aforesaid, then and there feloniously did put, and one composition cased watch, of the value of twenty-five dollars, of the goods and chattels of the said George F. J ohnson, from the person, and against the will of the said George F. Johnson, in the highway aforesaid, then, and there violently and feloniously did seize, take and carry away, to the great damage of the said George F. Johnson, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.
    ' G-. J. DAYIS, District Attorney.

    The defendant pleaded not guilty.

      The cause came on to be tried in the Livingston Oyer and Terminer, in May, 1865.

      George F. Johnson, testified as follows: On the 19th of March, 1863’ I was going up the street and Ranger called me to stop: I did so and they came up; he said: “Johnson, if you have got Eli’s watch you had better give it up.” I said I hadn’t, and told him to search me; he found a watch in my pocket and asked Eli if this was his; he said “no, let me take it.” He then asked if I had another, I said yes. I took it out of my pocket and Eli took hold of it and jerked it off, breaking a cord fastened to the watch which went around my neck, and said, “I’m all right—go to hell, you damned old fool.” The value of the watch was $15.
    On his cross-examination he stated that this took place in the day time, along towards night; that there were a number standing around; that he had had a previous transaction that day with Hall about a watch; half or three-quarters of an hour before; that before he left the , hotel Hall accused him of having his watch; that Ranger was a constable.

      Alanson Ranger testified as follows: On the 19th of March, towards night, Eli called on me to execute a search warrant against a man who had his watch; I went over and Johnson was going along the road, and Eli said, “ Damn him, there he is now.” We Went out and overtook him upon Center street. I said to him, “ if you have got Eli’s watch, you had better give it up.” . He said he hadn’t, and said, “ search me.” He threw his clothes open and I took out a watch and handed it out and asked if it was Ms; Eli said “no, let me take it.” Then I asked if he had another, and he took out a composition hunter’s watch, that had a chain on it, and I said, “ Eli, is that your’s?” He said “ no,” but he took hold of it and yanked it loose, breaking the chain, and Eli said, “ Damn Mm, I’ve got two for one-^let him go.”

      On his cross-examination he testified that Hall called on him to assist him in recovering a watch that Johnson had got from him; that Johnson spoke about Eli wanting to trade, and Eli asked him $3 to boot; this conversation was when the watch was taken.
    The people rested, and the defendant raised the question that this was not a case of robbery. The court held otherwise, and the defendant excepted.

      George F. Johnson was recalled and further cross-examined, and testified that he made a complaint against Hall before Esq. Stevens; that he saw Mr. Davis, the then district attorney, there, and that he told him he had settled, and that Hall wanted to keep one of the watches till he found his, and that he would not settle in any other way; witness also stated that he did not know but he and Hall then went to the tavern and drank together; he also stated that by that settlement he got back one of the watches.
    The defendant’s counsel asked that the court charge,
    1. That there is no felonious intent, proven; the court refused so to charge, and the defendant’s counsel excepted.
    2. That if Hall believed that he was getting his own property back or security for it, that then there is no felonious intent proven. The court refused so to charge, to which refusal the defendant’s counsel excepted.
    3. That the mere snatching of the watch from the hands of the complainant does not constitute robbery, for the reason that there was no injury done to the person, and there was no struggle for the possession of the property, and there is no proof that there was any terror excited in the mind of the complainant, or that any threats were made. The court refused so to charge, to which refusal the defendant’s counsel excepted.
    The court charged as follows: Gentlemen of the jury, this case is in a very narrow compass. Some questions of law have been discussed in your hearing, and they have been disposed of as you have heard. The -indictment is for robbery in the first degree; the statute defines that offense in these words: “ Every person who shall be convicted of feloniously taking the personal property of another from his person or in his presence, and against his will by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.” The evidence upon the part of the prosecution consists of that • of the prosecutor and the constable, and is, that Hall met the complainant on the highway, and the' complainant exhibited one watch which Hall took, but said it was not his, and the complainant then exhibited another, which the defendant seize dj breaking the chain. The court are of the opinion that if you believe the statements of these witnesses, the evidence will justify you in finding that that degree of violence was used by the defendant which will constitute the offense, provided all the other elements of the offense are established. To which the defendant’s counsel excepted. The defense claims that there is evidence that the defendant believed that this was his watch, or that he had the right to take it, to secure the return of his watch. There is no evidence that this was his belief, and the instruction to you is, that if you believe the evidence of the people, the testimony is sufficient to warrant you in determining that the defendant did commit the offense charged in the indictment. To which the defendant’s counsel excepted.
    The jury found the defendant not guilty, and the case was removed by certiorari to this court.
    ■ W. H. Kelsey, for the defendant.
    There is no felonious intent proved. To constitute robbery, the property must be taken animo furandi, with a felonious intent to appropriate the goods to the offender’s own use. And there must be a felonious intent with regard to the goods charged in the indictment; it is not enough that the prisoner had at the same time an intent to steal other goods. (2 East P. C., 652, cited at page 894, Roscoe’s Crim. Ev.)

    In this case there is no intent to steal shown; the whole of the testimony shows that the defendant intended to recover his own property, that he alleged the complainant had improperly obtained from him; and when he found that he cctold not get his own property, he seized the property of the complainant as surety for his own. The judge, therefore, erred in refusing to charge that the felonious intent, the animus furandi, was no.t proven.
    And he, also erred in charging that “the court are of opinion that, if you believe the evidence of the people, the testimony is sufficient to.warrant you in determining that the defendant did commit the offense charged in the indictment,” thus taking the whole question of felonious intent, in effect, away from the jury.
    The felonious intent is the gist of the offense. If the defendant snatched the watch supposing it to be his own, or to compel the complainant to return to him his own watch, the offense is not robbery. And the jury should have been left to determine, from all the facts and circumstances proved, what that intent was. The refusal to charge as requested by defendant’s counsel, and the charge as made, left nothing for the jury to pass upon except the credibility of the witnesses. The question of intent is always a question of fact to be determined by the jury, under proper instructions from the court.
    All the circumstances tend to disprove the felonious intent. The defendant procured a constable to go with him in search of the complainant, for the purpose of recovering his own property; and when the complainant refused to deliver defendant’s watch, the defendant snatched the watch that he did produce. We insist that it should have been left to the jury to say with what intent the act was done.

      Scott Lord, for the people.
    I. The offense of robbery was fully made out. The breaking of the chain which guarded the-watch was a sufficient violence to the person. (Citing McCloskey v. The People, 5 Park. Cr. R., 306; 4 Bl. Com., 243; 2 East P. C., ch. 16, § 124; Rex v. Mason, Russell & Ryan’s Crown Cases, 419; The Case of Lapier, 2 East P. C.,. 557, 708; Wharton’s Crim,. Law, 4th ed., 1700 ; East’s Pleas of the Grown, 709; 2 Russ. on Crimes, 989, 997; 19 St. Tr., 806.)
    II. There was no error in the refusals to charge as requested.
    1st. The court could not say that no felonious intent was proven, for it would have been taking the case entirely from the jury.
    2d. The second request was wholly hypothetical. There was no' evidence, not the least, to base it on.
    The third request was based upon reasons not only insufficient, but inapplicable to this case. We might say the defendant did all he could to keep his watch, but force or violence may exist independent of any struggle on the part of one assailed.
    TTT- The charge of the court was correct. The jury were told that, in the opinion of the court, the evidence, if they believed it, would justify them “ hn finding that that degree of violence was used by the defendant which will constitute the offense, provided■ all the other elements of the offense are established.”
    If the defendant wanted any further instructions given he should have requested the court accordingly. If this is not a case of robbery, what is it? It is not a "-ase of. larceny, for “there can be no robbery without violence, and no larceny with it.” (Long v. The State, 12 Ga., 18.)
    “The robbery being made out by proof of a taking by force, * * * the animus furandi is to be inferred from the appropriation.” (Ib., 325.)

      “When the tendency of an act is direct and manifest, the defendant must always be presumed to have designed the result when he acted.” (Whar. Cr. Law, 4th ed., § 633.)
   By the Court, E. Darwin Smith, J.

The defendant’s counsel on the trial requested the court to charge the jury that there was no felonious intent proved, and the judge refusing so to charge, the counsel for the defendant duly excepted. This exception is not well taken. It was a question for the jury whether a felonious intent was proved. The judge should not have charged as requested. It would have been a clear invasion of the proper- province of the jury. The intent of the prisoner in taking the watches was to be inferred from the evidence, and was not a question of law.

The second request to charge was, that if Hall believed that he was getting his own property back or security for it, then there was no felonious intent—was clearly a sound proposition if predicated upon any evidence — but the judge thought there was no evidence to call for such a charge, and did in substance so say to the jury, and to this part of his charge there is no exception.

The third request to charge that mere snatching of the watches would not constitute robbery, and the exception to the refusal of the judge so to charge, I will consider in connection with the exceptions to the charge.

It seems to me that the exceptions to the charge are well taken. The judge said that the court are of opinion that if you believe the statements of these witnesses, the evidence will justify you in finding that the degree of violence was used by the defendant which will constitute the offense, provided all the other elements of the offense are established. And at the close of the charge the learned judge said further: “ The instruction to you is, that the testimony is sufficient to warrant you in determining that the defendant did commit the offense charged in the indictment.’

It seems to me that these portions of the charge did virtually relieve the jury from their proper duty to pass upon the force of the evidence. The judge had refused to charge that there was no felonious intent, and that the mere snatching of the watches from the hands of the complainant did not constitute robbery. Taking these refusals with the charge, as made, I think the jury must have understood that they were virtually instructed by the court that the offense was made out and that it was their duty to convict the prisoner.

Under this submission, I think it quite doubtful whether the jury, passed at all upon the question of the felonious intent, which is of the very essence of the offense. They doubtless believed that the prisoner took the watches from the person of Johnson, as stated by him and the witness, Ranger, and supposed that if they believed that evidence they were bound to convict.

Such at least may have been their understanding of the charge. It was not at least in explicit terms submitted to them to consider with what view, purpose or intent the prisoner took the watches. The crime of robbery is a high offense, one of the highest in, the law, and involves, upon a conviction in the first degree, imprisonment in the State prison for a term not less than ten years. It consists, as-defined by statute (2 Rev. Stat., 677, sec. 55), “in the felonious taking the personal property of another from his person, or in his presence and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person.”

It is not pretended in this case that the prosecutor was put in any fear of injury to his person. The crime rests upon the other portions of the definition. The question was whether it was taken with a felonious intent, by violence to the person of the prosecutor.

The judge instructed' the jury in substance that the degree of violence used was sufficient to warrant them in finding the defendant guilty of the offense. In this I think the learned judge erred, although the view taken by him is probably warranted by several English cases.

™ The mere snatching a thing from a person has, in terms, "never been considered robbery, but has been in repeated cases held not to be robbery. The snatching of a bundle suddenly from the hand of a boy in the street was held not to be robbery in McCauley's case (1 Leach, 287; 1 Roscoe Crim. Ev., 898; 2 Russ., 67).

The snatching of an umbrella suddenly out of the hand of a woman, as she was walking in the street, was held not to be robbery. (2 Foster, 708; 2 Russ, on Crim., 67.)

In Stewart’s case it was ruled by Lord Holt that snatching a hat and wig from the head of a person walking in the street was no robbery. (2 East, 702.)

And yet, in several cases quite like this, snatching from the person was held to be robbery. In Lanier's case (2 East P. C., 57 and 708), earrings were pulled suddenly from the ears of the prosecutrix in a crowd, with such violence as to draw blood from her ears. This was held to be robbery. And in Mason’s case (Russ. & Ryan, 419), the prisoner seized the seal and chain of the prosecutor’s watch and pulled it from the fob, and it being secured by a steel chain around the neck, broke the chain by two or or three jerks, and made- off with the watch. This was held to be robbery.

But I do not believe in such law, and do not think these cases were rightly decided. These are really nothing but cases of snatching from the person. It is, it seems to me, straining the law to hold that these cases are really distinguishable in principle from those above cited and numerous other cases holding that mere snatching from the person is not robbery. The fact that a little blood was drawn from the ear in the Lazier case, and two or three jerks were made to break the chain holding the watch around the neck in Mason’s case, are circumstances of dissimilarity too insignificant and non-essential to turn a case of larceny—if the intent were felonious—into a case . of robbery. It seems to me almost trifling with fact and law to say the earrings in Lapier’s case, and the watch in Mason’s, were taken with such violence to the person, within the proper sense and meaning of that expression in our statute, as to constitute the crime of robbery.

A much more rational view of the law of robbery is taken in the case of McLosky v. The People, in 5 Park. Crim. Pep., 366. In this case, Judge Emott says: “The property must be taken by violence to- the person which means more than an assault and battery. The violence must be sufficient to force the person to part with his property, not only against his will, but in spite of his resistance.” The gist of the crime of robbery is the force and terror. (1 Hale P. C., 552; 2 Past P. C., 707.)

The especial heinousness of the offense of robbery .over simple larceny, consists in the terror and fear inspired, and in the apprehension and danger of injury to the person involved in the commission of the offense. When there is nothing to inspire fear, there must be superior force, and the property must be relinquished upon a struggle, and upon compulsion. In the Lapier case a mere child might have snatched the earrings from a grown up, strong woman. It would be preposterous in such a case to say that the crime was robbery. So in Mason’s case, a boy of ten or twelve years of age might, by surprise, have snatched the watch and broke the chain by a sudden jerk or two from a strong, athletic man, and run off with it before he could be arrested or hindered. I cannot think, in such a case, the boy could be convicted of robbery. The violence .to the person essential to constitute robbery, must be actual, and not constructive. There must be such force employed, or such degree of force, as shall overcome the free agency or power of resistance of the person despoiled. This rule only applies to cases where the property is taken from the person, or in his presence, and against his will, by violence to his person and with a felonious intent, and not to that class where property is taken by putting a person in fear. Upon this question of felonious intent, it seems to me the facts in this case rather repel the inference of a felonious intent. The property was taken in the day time, in the public street of a populous village, and in the presence of a constable and other persons, and where it was impossible for the prisoner to get away with the property, and where the facts were necessarily all open and so well known as to render it impossible for the prisoner to appropriate the property to his own use, or deprive the owner of it except temporarily.

For these reasons, I think the exceptions to the charge and to the refusal to charge as requested, that mere snatching was not robbery, should be allowed, and the case should be submitted to another jury.

The conviction should therefore be reversed, and a new trial ordered.

Johnson, J., concurred. J. C. Smith, J., dissented.


text:
    Supreme Court. Monroe General Term.
    December, 1863.

      Welles, M. D. Smith and J. G. Smith, Justices.
    The People v. Hiram McGeery.
    The act of-1861 (sec. 2, chap. 10 of the Session Laws of 1861), directing that where the regular panel of jurors is exhausted without obtaining a jury, the necessary jurors shall he drawn from the town box of the town in which the trial is had, is applicable as well to criminal as to civil courts.
    Where a sheriff is directed to summon jurors, they may he lawfully summoned by his deputies under his direction.
    An indictment contained counts for burglary, for larceny and for receiving stolen property, knowing it to have been stolen. On a general verdict of guilty, held, that the defendant was properly sentenced for the highest crime charged in the indictment.
    It is no good reason for reversing a judgment pronounced on a conviction for burglary, that it does not appear from the record that the defendant was asked before sentence if he had anything to say why sentence should not be pronounced against him.
    In the absence of an objection or exception on a trial for crime, it will be presumed, on review, that the usual formalities were complied with.
    Writ of Error to the Court of Oyer and Terminer of Ontario county.
    The defendant was indicted for burglary in the first degree, after a previous conviction for a felony, jointly with one Curtis, and was tried separately, having claimed so to be tried at the November Oyer and Terminer in Ontario county, 1861. At the trial the regular panel of jurors was exhausted before, the jury was filled, and the court ordered the sheriff to draw fifteen names from the box provided by the cleric, containing the names of all persons who had been selected and returned as suitable persons to serve as jurors, and who resided in the town of Canandaigua, where said court was held, pursuant to sec. 2d, chap. 10, of the Session Laws of 1861, which order was objected to by defendant’s counsel, and the objection overruled, and the defendant excepted.
    The sheriff having returned the list of jurors so drawn as duly summoned, the defendant’s counsel challenged the array because the sheriff did not personally summon all the jurors — some having been served by one deputy and some by another, and the residue by the sheriff. The challenge was denied and these facts proved. The court then overruled the challenge, and the defendant’s counsel duly excepted.
    In calling the jury, the district attorney claimed the right to challenge one juror peremptorily in behalf of the people, to which the prisoner’s counsel objected, and the court overruled the objection and allowed the challenge, and the juror was set aside, and the defendant’s counsel excepted.
    The defendant was convicted and sentenced to the State prison for ten years and five months.

      Some of the counts of the indictment were for burglary, some for larceny, and some for receiving the stolen property, knowing it to be stolen.
    It was objected that the verdict was irregular, because it did not find upon all the counts, but found the defendant simply guilty. Also, because it did not appear upon the record that the prisoner, before sentence, was asked why sentence should not be passed upon him. .

      J. H. Anthon, for the prisoner.

      W H. Smith (District Attorney), for the people.
   By the Court, E. Darwin Smith, J.

The objection that the jury was not properly empanneled, I think entirely untenable. After the regular panel was exhausted there was no legal way to fill up the jury, except by drawing, as was done in this case, from the town box, of persons of the town of Canandaigua, according to the provisions of the act of 1861, section two, chapter 210. That act repeals all other provisions of law for securing a jury after the regular panel is exhausted, and applies to all courts of record where jury trials are had in this State ■—to courts of Oyer and Terminer as much as to civil courts. The act applies in terms to all courts, and I see no ground for excepting criminal courts. The jury was properly drawn and pronounced. When a sheriff is directed to summon a jury, he may do it himself, or direct it to be done by constables or deputies, as was done in this instance. It is, in legal effect, done by the sheriff when it is done under his direction and authority by any subordinate officer. The sheriff in this case made the proper return that he had duly summoned the jury as directed by the order of the court.

The objections to the indictment are not well taken. The misjoinder of crime, in some of the counts for which the defendant was not jointly liable to be convicted, was obviated by the quashing of those counts at the trial, as it was admitted in the argument to have been duly done.

The conviction and sentence I think entirely right. I can see no error in these particulars. The jury was entitled to render a general verdict, and this we must hold to have been upon the higher offense charged in the indictment and for which the prisoner was tried. The sentence was the proper sentence under the statute for burglary in the first degree.

The objection that it does not appear by the return and record that the prisoner was arraigned, or plead to the indictment, or was present at any time during the trial, is not well founded. It is distinctly stated that he pleaded to the indictment, which implies an arraignment, and it also appears that he, by his counsel, objected to the exercise by the district attorney of the right to challenge a juror, and it is also stated that the “ prisoner, in due form of law, challenged the array of the jurors.” This is not stated to have been clone by counsel; and the objection that it does not appear that the prisoner, after conviction, was asked why sentence should not be passed upon him, is, I think, not well founded. Such an objection has been held to be valid in capital cases, but not in felonies or misdemeanors. There is now no reason in this objection, since exceptions are allowed in criminal cases, and prisoners on trial for criminal offenses are allowed counsel who are capable of attending to their interests and making such motions in arrest of judgment, or otherwise, as may be proper. 1 think, also, in regard to such mere formal questions it should be implied in a court of review, in the absence of any statement, objection or exception upon the record on the subject, that the usual formalities in such case had been duly complied with according to established and uniform practice in criminal trials. I think no error occurred in the court below, and that the judgment should be affirmed. [Judgment affirmed.


text:
    Supreme Court. Monroe General Term.
    September, 1865.
    Johnson, J. G. Smith and M' D. Smith, Justices.
    The People v. Orson Bruno.
    The right given by the Revised Statutes to obtain a review of a criminal case on exceptions supersedes the necessity for the practice previously established, by which an inferior court of criminal jurisdiction, after conviction, suspended sentence and asked for and obtained the advice of the Supreme Court as to doubtful questions of law that had arisen oh the trial.
    Such practice, however, has not been abolished, and it is competent for the Supreme Court to entertain such an application, and to decide it upon its merits.
    Where an indictment contained two counts, one for larceny and the other for receiving stolen property, knowing it to have been stolen, and the jury found a general verdict of guilty, and it appeared that both counts related to the same transaction, held, that there was no ground for sustaining a . motion in arrest of judgment, but that judgment should be given for the highest grade of offense.
    A motion in arrest of judgment is not limited to the indictment, but may be made on the whole record, which includes the verdict.
    Form of an entry on the record made by the Court of Sessions, for the 'purpose of asking the advice of the Supreme Court upon questions of law involved in the case.
    The prisoner had been tried and convicted, in the Court of Sessions of the county of Livingston, under an indictment containing two counts, one for larceny and one for receiving stolen goods, knowing them to have been stolen.
    "An entry in the following words was made on the record, and sent to this court, upon which the advice of this court was asked:
    “ On this day, to wit, this third Monday of May, in the year of our Lord one thousand eight hundred and sixty-five, the district attorney moved for judgment against said defendant, whereupon the said defendant, by his counsel, moved in arrest of judgment on the ground that the indictment contains two counts, one for larceny and the other for receiving stolen property, knowing it to have been stolen, and which indictment was found by the grand jury on account of and out of the same transaction, and for the purpose of meeting the evidence in the case in relation thereto, and although the evidence showed but one transaction, yet the jury found a general verdict of guilty, therefore, making it impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced.
    “ Whereupon the said court determine and certify to the Supreme Court, that the evidence offered upon the trial hereof was of one transaction, and that both such counts and such verdict relate to one transaction, and said court not being advised what judgment it should render in the premises, direct that judgment be suspended for the purpose of taking the advice of the Supreme Court, what judgment, if any, should be rendered upon such verdict, and whether or not, such judgment should be arrested as moved for by said defendant, and direct that -these questions be presented to the general term of the Supreme Court of the Seventh district, at the next term thereof, by the defendant’s' counsel on behalf of this court, and upon at least four days’ notice'to the counsel of the people. The counsel for the people objects to the finding by this court, that both counts refer to the same transaction, and that the verdict can relate to but one transaction.
    “S. HUBBARD, County Judge.

    “UTLEY SPENCER, ) T .. , „ . .
    “ J. T. VAN NESS, $
    “I, Harvey G. Baker, clerk of said court, do certify that the foregoing determination and certificate was made by the Court of Sessions, of the county >of Livingston, and signed by the members thereof in open court at the time and in the year aforesaid.
    r -j “ Witness my hand and the seal of said court, ■ " Sthis twenty-fourth day of May, A. D. 1865.
    “ H. G. BAKER, Clerk."

      Scott Lord, for the defendant.
    I. The judgment must be arrested for the reason that it is “impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced.” (The People v. Wright, 9 Wend., 196.)
    1st. So far as appears from the indictment itself and the verdict, it may not be impossible that the defendant committed both offenses, and if so, he would be subjected to distinct punishments for each. (Kane v. The People, 8 Wend., 204.)
    2d. But as it appears from the certificate of the Court of Sessions, that there was but one transaction, and but ■ one offense, what judgment can it pronounce? The crime of grand larceny must be punished by imprisonment in the State prison, for a term not less than one and not exceeding five years. (2 R. S., page 679, sec. 63; N. Y. Statutes at Large, 5th vol., 204.) The crime of receiving stolen property may be punished by imprisonment for a term not exceeding five years, or by one day’s imprisonment in the county jail, or by a fine of six cents (2 R. S., page 680, sec. 71), and if this conviction stands, the statute requires the court to pronounce judgment ■ for both offenses.
    3d. No distinction can be made so far as the question before the court is concerned, whether the offenses are charged in one count or in two counts; if in one, the count would be bad for duplicity. But in regard to making an arbitrary selection the difficulty is the same. (The People v. Wright, 9 Wendell, 196; Lambert v. The People, 9 Cowen, 586; Reed v. People, 1 Parker’s Crim. Law, 481, 488, 489.) It will be seen, in this latter case, that although the court say the indictment is bad for duplicity, it also finds the same difficulty as is stated in 9 Wendell. (Thomas v. The State, 5 How. U. S. R., 20; Steele v. Anderson, 1 Strobhart, 455; Barb. Crim. Law, 298, 365; 2
      McCord, 257; U. S. v. Stetson, 3 Woodbury & Minot, 166; Wharton's Crim. Law, 4th ed., 580, 591, 3,046, 3044.)
    4th. In the cases quoted by the counsel for the people, what the jury might have found, or what the court might have known, has been left open to inference; but no such inference is open in this case, for the court distinctly find that the indictment, evidence and verdict all relate to one transaction.
    II. The verdict is inconsistent and repugnant. It is impossible that in one and the same transaction a person can be guilty of the original offense of stealing property, and of receiving the same property, knowing it to have been stolen.
    1st. The evidence proving the larceny would ex necessitate rei acquit a defendant of the charge of receiving the same property knowing it to have been stolen, and evidence that he had received it knowing it to have been stolen, would also of necessity acquit him of the charge of larceny. Formerly, in England, a receiver was by statute treated as an accessory, and could not be tried until after the principal had been convicted, but afterwards the statute made the offense a principal felony, and such is our statute. (The People v. Wiley, 3 Hill, 194, 204, 206.)
    2d. The two offenses, by our statute, are treated as distinct and separate offenses. By sec. 63 of page 679, of the 2d vol. of the Rev. Statutes, it is provided that “ every person who shall be convicted of a felonious taking and carrying away the personal property of another, of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny.” And by sec. 71, “ every person who shall buy or receive in any manner, upon any consideration, any personal property, of any value whatsoever, that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, shall, upon conviction, be punished,” &c., and there is no occasion in an indictment for this offense, to state either the time or place of the original stealing. (Barb. Crim. Law, 177; 3 Chitty’s Crim. Law, 958; 2 East P. C., 780.)
    III. By allowing a general verdict to be taken upon an indictment, charging two distinct offenses out of the same transaction, a verdict of guilty may be rendered against a defendant, when in truth the jury did not find him guilty of any offense. (Dediu v. The People, 22 N. Y. Rep., 180.)
    IV. The defendant is not legally in fault, nor is he open to any manner of censure for the situation of the case. At the outset he moved that the district attorney elect which count he would proceed upon, which motion was denied. It behooves the district attorney from that time forward to see that no injury resulted to the defendant from such denial, more particularly for the reason he could not have the benefit of an exception or writ of error on account of it. (The People v. Baker, 3 Hill, 159.)
    But it has been distinctly held that “the prisoner is entitled, on the motion in arrest to avail himself of every objection, either in substance or form, which could have been taken on a demurrer to the indictment.” (People v. Dwight, 9 Wend., 196.) If this be so in regard to a question which might have been taken upon the arraignment, how touch more should it apply to so substantial an error, occurring at the very close of the trial.
    V. A refusal to arrest a judgment cannot be reviewed by exceptions or a writ of error. (The People v. Casborus, 18 John., 351; do. v. Dalton, 15 Wend., 581, 584.) This point is made:
    1st. As a reason why this court should give the advice requested.
    2d. As a reason why the Court of Sessions, if there be even a doubt as to its right to pronounce judgment, should grant the motion in arrest, more particularly so, because the people have the right to review the question by writ of error. (The People v. Ont. Genl. Sessions, 2 Wend., 631.)

      VI. The Court of Sessions have power to grant a new trial for irregularity (Gay v. Monroe Genl. Sessions, 12 Wend., 272): but if there is any doubt of this, and as a further reason why any doubt should be given in favor of the defendant, it appears that if the judgment is arrested, the defendant can be tried again,, and this is settled by numerous authorities, among them, Bishop on Crim. Law, 694, 695; Wharton Ib., §§ 3043-44; The People v. McKay, 18 John., 212, 218; Girard v. The People, 3 Scammon, 362-63-64; Requav. Reed, 1 Eng. L. & E., 595; People v. Casborus, 13 John., 352; Barb. C. L., 298; G. & W. on N. T., 134.

      G. J. Davis (District Attorney), for the people.
    The two counts are properly joined in one. indictment. (Kane v. The People, 8 Wend., 203; 11 Metc., 575, 581; Keefer v. The State, 4 Ind. Rep., 246; 17 Verm., 658.)
   By the Court, E. Darwin Smith, J.

Before exceptions were given in criminal cases it had become the practice in this State, of Courts of Oyer and Terminer and General Sessions and other inferior courts having criminal jurisdiction, to suspend sentence after conviction, when difficult or important questions of law had arisen upon the trial, and ask the advice of the Supreme Court in respect to such questions. The practice was sanctioned by this court, and such advice was given as though applied for in due legal form. (6 Cowen, 556.) In the Revised Statutes of 1830, exceptions were given in criminal cases as in civil, with the writ of certiorari, to bring up for review questions of law made and decided at the trial which obviously dispensed with the necessity of such practice, and it has since in a great degree fallen into disuse. But applications of this kind have nevertheless been made and entertained in some instances since the revision of the statutes in 1860. Such was the case of The People v. Wright (9 Wend., 193); The People v. Stearne (21 ib., 409); The People v. Cummings, 3 Park. Cr. Rep., 343), and though I think the court would be entirely justified in declining now to give such advice, and leave the parties to their writ of error or certiorari upon the exceptions taken at the trial, I am not aware that the court has in any instance refused to entertain such application when duly made at the. instance of any inferior court. The papers before us upon this application, show that this case has been once before us upon certiorari and exceptions, and that the conviction was affirmed by this court, and the case remitted to the Court of Sessions, with directions to carry the conviction into effect by the proper sentence of the prisoner. The counsel for the prisoner, it now appears from the certificate of the Court of Sessions, moved in that court in arrest of judgment, on the ground that the indictment contained two counts, one for larceny, and the other for receiving stolen property, knowing it to have been stolen, and the jury having found a general verdict of guilty, it is impossible (it was urged) for the court, without an arbitrary selection, to determine the proper judgment to be pronounced. The inquiry addressed to this court is, whether the motion in arrest ought to be granted. Motions in arrest of judgment can only be made for matters appearing on the record. (1 Chitty Crim. Law, 661; Wharton’s American Crim. Law, 3043; 1 Archbold Crim. Plead., 671.)

Any objection which would be fatal on demurrer, will be equally so on motion in arrest of the judgment after verdict. (Chitty, 662; People v. Wright, 9 Wend., 196.) The joinder of the two counts in this case for larceny, and for the receiving of stolen property, knowing it to be stolen, would not have been bad upon demurrer. In this State, the joinder of such counts I think has been ever allowed in a single indictment, and where an offense comprises different degrees, is expressly authorized by statute. (2 Rev. Stat., 751, § 51.)

In Wharton’s American Crim. Law (§ 402), it is said that in England, as well as in this country, the correctness of the joinder of larceny with receiving stolen goods, may be considered as established. When offenses of the same nature, and for which the same or similar judgments may be given, are stated in different counts of the same indictment, an objection to such indictment on that ground cannot be sustained in error or on demurrer, or in arrest. (Wharton, § 415; 5 Met., 582; 8 Wend., 204; People v. Kane, Archbold, 308.) But the motion in arrest is not limited to the indictment, but may be made upon the whole record, which includes the verdict. And the motion in this case is chiefly based upon the fact that the verdict is a general one, not applied by the jury to either count of the indictment, and that it is, therefore, “ impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced,” and this presents the chief apparent difficulty with the Court of Sessions. If the offenses charged in the indictment were really distinct and separate offenses, relating to different transactions, and subjecting the offender to different kinds of punishment, the difficulty which embarrassed the court below would be a real one, and the objection to award of judgment upon the conviction, I think, would be insuperable. ( U. S. v. Peterson, 1 Woodbury, 321, and 1 McCloud, 257; State v. Montaigne.) But it is a mistake to regard the offenses charged in this indictment as separate and distinct offenses within the true intent and meaning of the phrase. They are really different phases, or parts or degrees of the same offense. The judges of the Court of Sessions, upon their certificate, upon which our advice is asked, certify that the evidence offered on the trial was of one transaction, and that both such counts and such verdict relate to one transaction, and they also say “ that said indictment was found by the grand jury on account of, and out of the same transaction, and for the purpose of meeting the evidence of the case in relation thereto.” It seems to me that this certificate presents the precise case so well described by the Chancellor, in Kane v. The People (8 Wend., 211), in these words: “It is every-day practice to charge a felony in different ways in several counts, for the purpose of meeting the evidence as it may come out upon the trial; each bf the counts on the face of the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved; but no one ever supposed that formed a ground for arresting the judgment.” In such case, a general verdict of guilty implies a conviction of the greater offense, which includes the less. Every larceny includes, or may include a concealment of the stolen property. The punishment upon a conviction for grand larceny may be imprisonment in a State prison for a term not less than two nor exceeding five years. For the crime of concealing stolen property, it may be imprisonment for five years or less, down to one day’s imprisonment in the county jail. When an offense consists of different degrees, the jury may convict upon any count, but if they convict of an inferior degree, they must say so in their verdict. In this case, the bill of exceptions before us, shows that the prisoner had at one time possession of the stolen property, and sold the same. The jury might, iipon this evidence, have convicted him of receiving the stolen property under the second count, and this would have been equivalent to an acquittal upon the first count, charging him with the larceny. As they did not thus render their verdict finding him guilty on such second count, they must be deemed to have found him guilty of the larceny. This is the meaning of their verdict. It is well settled that when there is a general verdict of guilty, upon several counts relating to the same transaction, the practice is to pass judgment on the count charging the highest grade of offense. (Wharton, § 3048; Manly v. The State of Maryland, 7 Maryland Rep., 135; State v. Hooker, 17 Vermont, 668; State v. Donnee, 8 ib., 424; United States v. Peterson, 1 Woodbury Rep., 305.) This question was before us on a former occasion in the case of The People v. McGeery, convicted of burglary in the Ontario Oyer and Terminer. The indictment contained quite a number of counts, all relating to the same transaction, and the verdict was a general one of guilty. The prisoner was sentenced for the highe.st grade of the offense charged in the indictment, and we held it right, and affirmed the judgment upon error. We think in this case that the verdict of guilty must be deemed a verdict for the larceny charged in the first count, and that the offense charged in the second count is to be deemed an inferior degree of the same offense, and merged in the same, and advise the General Sessions .of the county of Livingston to sentence the prisoner accordingly.


author: By the Court, James, J.

text:
    Supreme Court. Clinton General Term.
    January, 1865.

      Boches, James and Bosehrans, Justices.
    The People v. Ransom Brown.
    Under an indictment charging the selling liquor by the glass, to he drank upon the premises, without license, the defendant having a tavern-keeper’s license, cannot he convicted on proof that he sold a glass on Sunday which was drank upon the premises, the indictment not being descriptive of that offense.
    An indictment contained two counts, one for selling liquor, by measure, in quantities less than five gallons, and the other for selling by the glass, to he drank upon the premises, without license. Competent evidence was given under the first count, and incompetent evidence was received in support of the second count, to which an exception was taken. The jury gave a general verdict of guilty. On certiorari, the conviction was reversed for error in admitting the evidence under the second count.

      Certiorari from the Saratoga County Sessions.

      J. C. Ormsby (District Attorney), for the people.

      J. Brotherson, for defendant.
   By the Court, James, J.

The defendant was tried and convicted, in the Sessions, for selling liquor without having a license therefor. The indictment contained a count for selling by measure, in quantities less than five gallons, and also one for selling by the glass, to be drank upon - the premises, without having a license therefor, without authority of law, and contrary to the statute, &c.

The proof was of a sale qf less than five gallons, not drank on the premises, and a sale of one glass on Sunday, drank upon the premises.

The defendant produced a license as an inn or tavern-keeper, from the proper authorities of the county, which was in force at the time complained of.

At the close of the evidence, the defendant asked to have struck out the testimony of a sale on Sunday, as immaterial under the indictment. The motion was denied, and defendant excepted.

The case was submitted to the jury, and they were directed, “if they found that the defendant did sell liquor by the glass, on Sunday, to be drank upon his premises, they might find him guilty under the indictment, notwithstanding his license.”

The defendant asked the court to instruct the jury: 1st. That the license proved was a defense under the indictment for selling the glass of liquor proven to have been sold and drank on the premises. 2d. That unless the jury should find some other offense proved than that sale of a glass of liquor on Sunday, they could not convict under the indictment. The court refused so to charge, and defendant excepted.

•The excise law of 1857, section fourteen, prohibits the sale of liquors to be drank on the premises where sold, unless the seller has a license therefor as an inn, tavern or hotel-keeper, under a forfeiture of $50 for each offense; and section twenty-nine further declares every such offense a misdemeanor, punishable by a fine of $100 and imprisonment for three months. Section two empowers commissioners of excise to grant licenses to keepers of inns, taverns or hotels, to sell liquors to be drank in their houses. Section six specifies the requirements to obtain such license, and directs the insertion of certain of these requirements therein. Section seven provides for a bond, and specifies its conditions; but there is not required to be inserted, either in the license or bond, any inhibition or condition against selling liquor on Sunday. Upon its face, the license covers the whole period for which it is granted, and each and every day thereof.

It is an elementary principle that an indictment, in stating the offense, should specifically set forth all the facts and circumstances necessary to constitute that offense. Such a degree of certainty is necessary that the defendant may not be indicted for one offense and tried for another; that he may know distinctly and positively what crime he is called upon to answer; that the jury may deliver an intelligible verdict; that the court may render the proper judgment, and the defendant may, with proper averments, plead the judgment in bar of another prosecution for the same offense.

The indictment in this case was for an act prohibited by section fourteen of the excise law. Its gravamen was that the accused had sold liquor to be drank on his premises, without having a license therefor. The plea of “not guilty ” put all these allegations in issue. It amounted to a denial as well as a defense. A sale was proved, and so was the defense. The license being without any condition or restriction, and covering the period of sale, was a complete defense to the offense charged. .

Section twenty-one of the excise act declares that no inn, tavern or hotel-keeper shall sell or give away any intoxicating liquors on Sunday as a beverage, making it a misdemeanor punishable by imprisonment not exceeding twenty days, and it was insisted that selling on Sunday was selling without a license, and that a conviction for that offense was proper under the indictment in this case. But such was not the intention, nor would it be a fair construction of the statute. The whole act must be consulted m its construction; and, by so doing, the offenses sought to be blended as one will be shown to be separate and distinct, with different penalties, and applicable to persons in different conditions.

Section fourteen reaches all persons selling, on any day of the week, without a license; section twenty-one affects' only persons licensed as inn-keepers, on one particular day of the week, and affects gifts as well as sales. One is prohibitory; the other regulative.

Under .an indictment for selling without having a license, the accused could not know that he was to be tried for selling on the Sabbath; nor would the record of conviction under such an indictment, even if well pleaded, be a bar to a special indictment under section twenty-one, for the same offense.

It was urged that section twenty-nine of the excise law is general; that it had so been held in this court (People v. Gilkinson, 4 Park.- Cr. Rep., 28), and hence there was both a special and general penalty given for each offense. It is not necssary to deviate from the ruling in the case of The People v. Gilkinson, in order to sustain the exceptions in this cáse; on the contrary, we may concur in the construction in that case given, to the words “which offenses,” in section twenty-nine, without holding that the excise statute provided both a special and general penalty for each offense. „

In the construction of statutes, general words in one clause may be restz’ained by particular words in a subsequent clause of the same statute. (Dwarris, 658.) So where a general intention is expressed, and the act also expresses a particular intention, the particular intention is to be considered in the nature of an exception. (Ib., 658; Churchill v. Crease, 5 Bing., 180, 492, 493.) So, if a particular thing be given or limited in the preceding parts of a statute, it shall not be taken away or altered by any subsequent general words of the same statute. (Bwarris, 658.) In the excise statute a particular intention was expressed, prohibiting licensed inn-keepers from selling or giving away spirituous liquors, as a beverage, on Sunday, and fixing a special penalty for its violation. Other than licensed dealers could give it away on that day, and licensed dealers might sell it on that day for other purposes than a beverage, clearly demonstrating that this clause of the statute was for a special purpose, with a special penalty, and not incompatible with the general scope and intention of the act; therefore, its restrictive quality is not taken away or destroyed by the subsequent general words of the act, but are as exceptions to the general clause.

It was insisted that if the charge of the court, to .which exception was taken, was wrong, a new trial should not be granted, because the uncontradicted evidence, to which no objection was made, showed the defendant guilty of selling by measure. In a criminal case, the question of guilt is one wholly for the jury. There was sufficient evidence to have warranted them in convicting the defendant under the first count; but as their verdict was general, we cannot say they based their verdict on .that offense. It may have been for the other offense charged. In a bill of exceptions, if an exception is well taken, the verdict must be set aside and a new trial granted, unless the appellate court can see that the error was such that no injury could arise from it to the excepting party.

The county judge erred in refusing to strike out the evidence of a sale on Sunday, and also in his instructions to the jury that the license produced constituted no defense to the sale oh Sunday.

Conviction reversed, and cause remitted to county court for new trial.


author: By the Court, Peckham, J. Hogeboom, J.

text:
    Supreme Court. Albany General Term.
    September, 1868.

      Ingalls, Hogeboom and Feckham, Justices.
    George Hall, Plaintiff in Error, v. The People, Defendants in Error.
    On the trial of an indictment for burglary in having broken open the barn of J. Gc. and taken therefrom divers articles of personal property, it was proved that the articles were found, five days after the burglary, on the boat of the prisoner and in his possession. Held, that it was erroneous for the court to permit the prosecution to prove that there was also found on the boat of the prisoner other articles of property, stolen from one P. P. S., two or three weeks prior to the burglary in question, and, for such error, the judgment was reversed.
    On the night of Thursday, the 24th of April, 1867, the barn of the Rev. John Gaston, Saugerties, Ulster county, was- broken open, and a set of harness,, a lap robe, net, blanket, whip and umbrella, stolen therefrom. The stolen articles were found on the boat of the prisoner, at Tivoli, Dutchess county, on Monday, April 29th, five days after the burglary. The harness, robe, blanket and net, were in a box on the deck of the boat', and the umbrella and whip in the cabin. Hall was arrested and indicted on the charge of burglary, the indictment containing one count, charging Hall with burglariously entering the barn of Mr. Gaston,. on the 24th of April, 1867, in the night time, and feloniously taking the articles above mentioned. . On the trial at the Ulster February Sessions for 1868, the prosecution proved the possession of the stolen goods by Hall, on the 29th of April, and his statement made at the time in reference to them, and the manner in which and for whom he obtained them.
    The prosecution also proved, notwithstanding the objections of Hall’s counsel, that there were found on the boat of the prisoner, certain property stolen from one Peter P. Schoonmaker, two of three weeks prior to the burglary at Gaston’s, and still other property stolen from the barn of one Peter T. Overbagh, on the night of the 28th of April; also, two coats claimed by one Roosa, but without any proof, that they were Roosa’s coats, or that they had been stolen or taken without his consent; also, various other articles claimed by other parties. The prisoner, who lived in the county of Oswego, introduced evidence of his good- character, and had one or two witnesses sworn-as to his acts and whereabouts while in this section of the State. To the court’s charge to the jury, the prisoner’s counsel took two exceptions. The prisoner was convicted of burglary in the third degree, and was sentenced to imprisonment at Sing Sing, for the term of two years and six months. A bill of exceptions was duly settled, and a writ of error allowed and the proceedings brought into this court for review.

      T. R. Westbrook, for plaintiff in error.

      D. M. De Witt (District Attorney), for the people.
   By the Court, Peckham, J.

It seems to me that this judgment cannot be upheld. The testimony of Peter P. Schoonmaker, that his harness had been stolen two or three weeks prior to the time of the burglary charged in this case, was immaterial to this issue, and was erroneously admitted.

The question before the court was, whether the prisoner had burglariously stolen the property charged in the indictment. The harness of Schoonmaker was not even found in the box where the property of the complainant was found. It was found on the same boat, in a different part, and was stolen some two or three weeks before.

This proof had no direct tendency to show that the prisoner stole the property referred to in this indictment. It did not prove that the one who had stolen that, had necessarily stolen this property. It showed, or tended to show, that the prisoner was a thief, and, therefore, more likely to have stolen this property than if he had been honest. If that proof were proper, then the prosecution might in the first instance prove the bad character of a prisoner, and thus show him more likely to have committed the crime charged. This, however, would not be contended for, yet the one kind of evidence is just as admissible as the other.

The testimony to be relied upon by the prosecution must have a direct bearing upon the crime sought to be charged upon the prisoner. This testimony is loose and indirect— inconclusive- and dangerous. The people might have properly shown the condition of things where this property was found, but they could not prove another felony unless it was so connected with the felony charged as to prove, or strongly tend to prove, that the man who committed the one was guilty of the other. I remember a case of one Dunbar, tried for the murder of a boy, in Albany county. It appeared that two little boys had been murdered the same afternoon, and on the same farm—were left together about midday, and were killed that afternoon. One was found, within a few days, hanging in a tree; the other some distance off, on the same farm, killed by a flail and partly buried. There was other evidence tending strongly to show that the same person must have killed both. On the trial for killing the one found buried, evidence was offered and received that the nails in the prisoner’s boots fitted precisely the marks made in climbing the tree where the other boy was found suspended. That testimony, I think, was clearly proper. (See 2 Leach, 285; Reg. v. Oddy, 6 Brit. Cr. Ca., 264-266.)

The principle is plain and clear, and I do not think authorities are required, although they are numerous. The charge of the judge was substantially right; but, for the error in admitting improper evidence, the judgment must be reversed.

Hogeboom, J.

I concur in the result of the foregoing opinion, and am, on the whole, inclined to concur in the ground upon which the opinion is placed.

As to the Oberbagh harness, I should not be disposed to grant a new trial. It was in the same box with the Gaston property, and the contents of the box were, I think, admissible as one of the circumstances of the transaction. The proof that the prisoner was acquitted on the trial for stealing that harness, came out on the part of the defendant; and, although the whole proof was subsequently offered and admitted through another witness, I scarcely think that was prejudicial error.

As to the Schoonmaker harness, had the proof been confined to an exhibition of the state of things on the boat, and the appearance of the deck and the cabin, so far as they exhibited suspicious appearances, I should not myself have been disposed to interfere with the result. But there was a manifest effort to establish a distinct offense, to wit: the larceny of the Schoonmaker harness, for which the prisoner was not indicted, and as to which he could not be expected to come prepared to defend. And I do not think it was sufficiently connected with, or illustrative of, the main transaction to justify its admissibility on that ground.

Moreover, the prosecution went further, and insisted upon proving the contents of the “ cubby hole ” (which was, perhaps, proper, if they exhibited a suspicious appearance), and by whom they were claimed. And this proof was admitted in a loose and general way, very difficult of contradiction if the prisoner could be regarded as bound to explain the ownership or possession of every article on his boat.

There are other matters which might form the subject of criticism, but I think enough has been said to show that the interests of justice will be promoted by a reversal of the judgment. I concur in the result at which my brother Peokham has arrived.

Judgment reversed and new trial ordered in the County Sessions of Ulster county.