People v. McCallam

Boardman, J. The defendant appeals from a conviction at the Jefferson county Sessions of the crime of grand larceny in the second degree under an indictment for grand larceny in the first degree. Was there evidence in the case to justify the conviction ? A reading of the case satisfies us' there was enough. The fact of larceny by some one is proved, and not controverted by any evidence. The defendant alone knew from Hennessey’s wife of the possession of the money by Hennessey and that it was kept in the trunk under the lounge. From the time the trunk was last seen in Hennessey’s house until it disappeared, — 196 — defendant was the only person known to be in the house, and the evidence tends to show that no other person could have been in the house. While defendant was in the house there was a period of about fifteen minutes in the night-time when she was alone and could have removed the trunk without notice. She lived next door to complainant and within two or three rods. She unfastened and opened the door of Hennessey’s house while she was alone there and in the dark for the ostensible purpose of carrying out a bedstead. The finding of four §5 gold coins concealed in defendant’s wood-shed, of the same kind with those stolen, and the tracks of defendant and her daughter leading towards the place where the trunk was found broken open and rifled, with other circumstances of less importance, make up a body of evidence against the defendant fully justifying a submission of the same tó a jury, and its verdict should be conclusive upon the facts. The defendant’s counsel, at the close of the people’s case, requested the court to hold cerlain abstract propositions of law as applicable to the case. The court at that stage of the ease declined to pass upon the questions and reserved them for further consideration at the close of the case. Such decision was proper and wise. Any other course would lead to an obnoxious and dangerous system of committing a court to the-expressions of opinions as to the law of the case before the facts were produced in evidence. Ho motion or application was then before the court calling for an expression of an opinion upon the propositions presented by the counsel for the defendant. After the defendant knew she was suspected of the crime she was told by Guest, one of the officers, that “ they had found enough to convict her ; she might as well own up.” Sometime afterward, and during the same interview, in a conversation between defendant and Champlin, another officer, the tracks leading back from defendant’s house toward the railroad were talked about, and the defendant’s declaration that “she and her daughter made them carrying clothes to Fox and Hardiman, Saturday night ” (the night of the larceny), were admitted in evidence. This is claimed to be erroneous as evidence of a confession made under the influence of fear produced by threats. Code Crim. Proc. § 395. This section has not — 197 — changed the rule of the common law in favor of one charged with crime. We think there are two answers to this objection. 1st. The declaration proved is not a confession. 2nd. It was admissible under the decisions touching confessions. First, the declarations of the defendant as proved are not acknowledgments of guilt or of a criminal act. They are not made against her own interest. Confessions have force against a prisoner because of the presumption that he will not lie to his own disadvantage. Here were the tracks made by defendant and her daughter. She says they were made when they were carrying clothes. This comes within no definition of a confession. See Bouvier, Webster, &c. It is simply a declaration made by one accused of a crime, denying any criminal act and explaining suspicious circumstances for her own advantage. But secondly ; if such declarations be adjudged to be confessions, under the facts proved, they were admissible in evidence against the defendant as used in this case. The language used was not a threat. The same language in substance was used in Wentz’ case, 37 N. Y. 304, to wit, “ He was in a bad fix and had got caught at last.” The prisoner then confessed his guilt, and the evidence was held competent. Such a confession was held to be “ wholly voluntary and made uninfluenced by any threat, menace, promise or other influence.” There is nothing from which it can be inferred that the statements were influenced by fear. They may have been dishonest and untrue. But they were the deliberate and voluntary statements of the accused in her own interest. The evidence stricken out at folio 240, was incompetent.* The defendant could offer such evidence only by way of contradiction of Ohamplin. It did not contradict him. It was the same with his evidence. Besides, Champlin’s testimony on this subject was drawn out by the defendant on cross-examination, and, being upon a collateral matter and hearsay, the defendant — 198 — will not be permitted to contradict or question it. Besides, no harm could possibly come from striking out what had already been proved by one of the witnesses for the people. It was competent to prove that the shoe of Angelina Quinn was of a size to make one of the tracks leading from defendant’s house towards the place where the trunk was found rifled. It tended to sustain the theory of the prosecution that defendant and her daughter carried the trunk to the place where it was broken open. The charge of the learned judge was eminently fair toward the defendant. The case was presented to the jury clearly and without error to the prejudice of the prisoner. Indeed, if there were errors, they were in her favor, and her rights were cautiously emphasized and repeated. Hence, very little respect is due to the score or two of requests to charge, which are without merit. They are mostly demands that the court shall express its opinion upon a given or imaginary state of facts isolated from the whole case. They were better adapted to confuse and trip a court than to serve any purpose of justice. Moody v. Osgood, 54 N. Y. 488. The criticism of the charge at folio 389 is not just. The submission of the conflicting evidence of the police officers and the defendant was strictly accurate. The influences and motives which surrounded them and were likely to influence their testimony, were properly submitted to the jury. Besides, I find no exception to this part of the charge. A request, however, was made to charge “ that all the evidence given by the officers might be true and the defendant still not guilty of the crime charged,” which was declined. After a full and fair charged such a request was unreasonable and absurd. The counsel has no right to separate particular portions of the evidence and ask the court to hold that such evidence may be true and the defendant still not guilty, that this witness may have testified to the truth, and the defendant still be innocent, or that the jury ought not to convict if they do not believe certain parts of the evidence offered. The jury had been told it must convict or acquit upon the impressions and belief arising from the whole evidence and if a reasonable doubt existed the defendant should be acquitted. — 199 — A failure to have charged, upon request, that the defendant might be convicted of grand larceny in the second decree would, in my opinion have been error. In certain inferences that might be drawn from the evidence the'defendant was guilty in the second degree only. The defendant insists she was guilty in the first degree, if at all. The jury has found her guilty, and she has not been harmed by a conviction in the second degree, instead of the first degree as she claims she ought to have been, if guilty at all. The Penal Code, section 35, and the Code of Criminal Procedure, section 444, allow of such a conviction for an inferior degree of crime. The evidence of the commission of the larceny was direct and positive. It excluded any presumption of innocent removal. It was not, therefore, a case of proof of a larceny by presumption only, as defendant’s counsel seems to suppose. The court was right in so holding. The evidence touching the identification of the coins found with those stolen, and the possession of the same by the defendant was properly submitted to the jury. They were not questions calling for a legal decision. The seventh request to charge was abundantly covered by the charge as made. If it were doubtful from the evidence whether the defendant or some third person stole the money, the jury was instructed to acquit. The twenty-fourth request to charge was hypothetical and the evidence would not justify the request made. The question presented was for the jury only, and not for the court. These are all the considerations urged upon us by the defendant why this conviction should not stand. We not believe any of them are well founded. The case was carefully tried and an eminently fair charge given to the jury. At the close of such charge, apparently, some twenty-seven requests to charge were made by defendant’s counsel. Some of them were charged and some refused. All of them were ingenious and plausible. But, as a rule, they sought the opinion of the court upon the weight of facts, or inferences -to be drawn therefrom, or opinions upon abstract questions of the law, having no foundation in the evidence. So far as opinions upon facts were — 200 — asked for, the questions had been properly submitted to the jury and the requests were properly denied. The law also had been given to the jury, and the court was not called upon again to repeat in different words or to pass upon abstract or theoretical questions not in the case or not justified by the facts. We think the conviction and judgment must be affirmed. Hardin, P. J., and Follett, J., concur. Footnotes [*] This evidence was given by defendant on her direct examination, and was to the effect that one Champlin (a police officer who searched the premises of defendant, and who was one of the people’s witnesses), had told defendant that her version of what occurred on Saturday night between her and Mrs. Hennessy, was just as Mrs. Hennessy gave it to him. Champlin in his cross-examination had previously admitted that he said this to defendant:—Reporters. [2] See People v. McTameney, 1 N. Y. Crim. 437.