Phelps v. People

Bocees, J.: This case comes before the court on the return to a writ of error. The plaintiff was convicted at the Albany Oyer and Terminer, October, 1874, of grand larceny, in stealing a draft or written instrument for $7,500, drawn by the Fanners and Mechanics’ Savings Bank of Lockport upon the Central National Bank, New York. The draft was forwarded to the treasurer’s office, to be credited to the county of Niagara, on account of State tax. The plaintiff in error was a clerk in the treasurer’s office, acting under the title of “ cashier.” He was allowed to receive moneys and drafts for the State, and to deposit the same in bank in the city of Albany; but had no authority to indorse drafts or other commercial paper, nor to make other use of the State funds than to deposit them in the proper bank of deposit. The draft set out in the indictment, and charged to have been stolen, came to the treasurer’s office in the regular course of business, indorsed to the order of the “ State Treasurer,” and was duly entered and credited upon the treasurer’s books, and was receipted to the county of Niagara on account of State tax. Instead of making deposit, as was his duty, the plaintiff in error indorsed the draft : “ State Treasurer. Per C. H. Phelps, Cashier,” and transferred it to a third party in the city of New York, with whom he had private dealings. The State realized nothing therefrom. The jury found him guilty, and he was sentenced to the Albany penitenriary for the term of five years. Various exceptions were taken on the trial, some of which are here urged as grounds of error, and it is proposed to consider those alleged grounds of error, in the order in which they were presented by the prisoner’s counsel on the argument. A challenge was interposed to the juror Lamb, which was tried and disposed of by the court, as now provided by. statute. (Laws of 1878, p. 681.) The ground of challenge was, that the juror had formed and expressed an opinion as to the prisoner’s guilt. After an examination of the juror before the court, the challenge was overruled. The juror stated that he had heard the case talked about; knew there had been a previous trial; had read part of the trial; had expressed an opinion from what he had read ; and if on the jury, would commence the trial with an impression on his mind. On further examination, however, he stated that all he knew about the case — 422 — was what he had heard talked, and what lie had read in the paper; that its effect was no more than an impression; that such impression would not influence him as a sworn juror; that he-could give a verdict upon the evidence, uninfluenced by any impression he then had; that he verily believed he could render an impartial verdict according to the evidence submitted on the trial; and that his previously formed opinion or impression would not bias, prejudice or influence his verdict. The examination of the juror was somewhat protracted, but the above is the substance of his statements, and brought him within the rule of competency now established by the statute. (Laws of 1872, p. 1133; Stokes v. The People, 53 N. Y., 173.) His answers showed him to be a man of intelligence, and they were given with fairness, indicating reliable integrity. There was no just ground to suppose him a.prejudiced juror, and the court was well authorized, upon his examination, to conclude that he did not entertain such a then present opinion as would influence his verdict as a juror. (Last clause of Law of 1872.) He was not shown to be incompetent, and the challenge was properly overruled. This conclusion renders it unnecessary to examine other alleged answers to the exception urged upon our attention by the counsel for the people, to wit, that there was no distinct challenge for favor, and that the decision of the court on the quesr tion of the juror’s competency was final; hence, not subject to valid exception. On this latter point we are cited to several authorities (36 N. Y., 279; 5 Park., 423-4 ; 49 N. Hamp., 406-7; 16 Ohio St., 330-334; 3 Nevada, 428-430; 47 Georgia, 606; 47 Cal., 395 ; 75 Penn. St., 424); but the conclusion above declared, renders it unnecessaiy to give them more than passing notice. A challenge was also interposed to each of the jurors Bailey and Taylor, which was overruled ; but no error is here urged based thereon. It is urged that there is no count in the indictment upon which the conviction can be sustained. The point of this objection is that the indictment is fatally defective, because of the'want of an averment that there was money due upon the instrument alleged to have been stolen, or secured thereby, or remaining unsatisfied thereon, or which might, in some event or contingency, be collected thereon. The indictment clearly charges the crime of grand larceny under the statute. It averred the felonious taking and — 423 — carrying away of the personal property of another, to wit, a bill of exchange or draft directing the payment of money, $7,500, which, in several of the counts, was set out m haee verba, with indorsements, and fully described in other counts. Such instrument is declared by statute to be personal property, for the purpose of making it the subject of larceny; and the statute further declares that where the stolen property shall consist of a bill of exchange, draft, order, or other evidence of debt, the money due thereon, or secured thereby and remaining unsatisfied, or which, in any event or contingency, maybe collected thereon, shall be deemed the value of the article so stolen. (2 R. S., 679, § 63; id., 702, § 33; id., 679, § 66.) The effect of these statutes is to make the instruments in sections 33 and 66, mentioned, to stand as “personal property,” with a view to secure the punishment of the offender who should steal them; and their value is declared by law in order to stamp the degree of crime. It was not intended that the averments in an indictment for stealing those instruments, should be different from those charging the larceny of other personal property, save in the matter of description. Here the instrument is set out in some of the counts, and fully described in others, making the description of the property perfect, and in each and every of the counts it is averred to be “ of the value of $7,500.” This was sufficient as an averment of value in the indictment, and left the case to rest on the proof, and the statute was intended to aid in that respect. All facts necessary to the establishment of the crime were averred: The indictment fully informed the accused of the precise instrument with the stealing of which he was charged, and the law declared its value as therein averred. It is here unnecessary to consider the rules of criminal pleading in the English courts, the technicalities' of which are not-here strictly observed, when the substance is preserved; and more especially is this so, in view of the statute of jeofails, in force in this State, which provides that “ no indictment shall be deemed invalid, nor shall the trial, judgment or proceedings thereon be affected * * * by reason of any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.” (2 R. S., 728, § 52, and cases cited under this section in Edms. ed.) It is now the settled rule in this State, that the indictment is sufficient, if it aver — 424 — all facts necessary to render the charge intelligible in its legal requisites, so as fully to inform the accused of the offense he is called upon to answer. Tested by this rule, the objection to the indictment is manifestly without ground of support. The case must stand or fall on the sufficiency or insufficiency of the proof. Let it be admitted, as undoubtedly it must be, that it was necessary to a legal conviction in this case to aver and prove the ownership of the property alleged to have been stolen, unless such ownership was unknown (when that also was matter of averment), and there was no error in allowing proof in this case of the making of the draft and its purpose, and of its indorsements and tranfers, and also of the circumstances attending its appropriation and use by the prisoner. In this way was its ownership at the time of the alleged larceny to be determined. Nor was the prosecuting officer bound to elect under which count he would proceed, when the ownership was variously charged in the several counts. (Davis v. The People, 56 N. Y., 95; La Beau v. The People, 33 How. Pr., 69; Nelson v. The People, 5 Park., 39; Osgood v. The People, 39 N. Y., 449.) The proof shows that the draft came to the treasurer’s office in the regular course of business, and was accepted there, to apply on account of State tax. It was so entered in the books of the office. Now, this being so, the draft became the property of the State, or of Thomas Baines as Treasurer of the State; and the ownership was charged both ways in the indictment. Indeed, there is no difficulty in the position that ownership was well averred in each, as against one who should feloniously take and appropriate it to his own use. (The People v. Bennett, 37 N. Y., 117, 128, 131; The People v. Sherwin, 2 N. Y. S. C., 528.) It has been repeatedly held ,in cases where larceny is charged, that whenever a person has a special property in -the subject of the larceny, or holds it in trust for another, ownership may be laid in either. Here the ownership of the draft was in the State, with special property in the treasurer. The latter had rights and duties pertaining to-it, sufficient to uphold an averment of ownership in him, against one who should take it from him feloniously. Nor is it a matter of any consequence here whether the legal mode of transmitting funds for the payment of State tax was or was not observed. That was a question with which the prisoner had no — 425 — concern. The draft was a valid instrument, and if received and accepted by the treasurer on account of State tax, it either became the property of the State, or his property as Treasurer; and whether the one or the other, or even if the Treasurer had but a special property in it, will not affect the legality of the prisoner’s conviction under this indictment.- It is also sufficient here to say that property was well laid in the State, were it necessary so to hold to sustain the conviction. But, as the case is here presented on the facts, this point is not deemed of vital importance. The above considerations bring us to an examination of the principal question discussed on the argument, to wit: Whether, according to the proof, there was such a felonious taking and carrying away of the draft by the prisoner as to constitute the crime of larceny. It is a well established rule that a felonious taking of the property alleged to be stolen is essential to the crime of larceny. So, every larceny includes a trespass in the taking. All the cases where this subject is considered so declare. Hence it is deemed little profitable here to collate them. Judge Church says in The People v. McDonald (43 N. Y., 63), that “ it is a well established, but somewhat technical rule, that every larceny must include a trespass, and that the taking must be under such circumstances as that the owner might -maintain an action of trespass;” and he adds: “ It follows, therefore, that the prosecutor must be in the actual or const/ructime possession of the property at the time of the taking.” This last paragraph shadows forth a distinction, as regards what may, in some cases, be deemed a sufficient possession in law, on which to base a charge of larceny, which is brought prominently before us in the case at bar. Let it be conceded that the prisoner here was principal in the possession of the draft, and trespass would not lie against him for its misappropriation; and, of course, the taking of it by him in that case could not be felonious; but, on the other hand, if his possession was such only as devolved upon a mere servant or clerk, he would be guilty of theft by a felonious taking and conversion. The consideration given this subject, with its distinctions, by Judge Church, in the case above cited, renders it unnecessary to make any extended remarks with a yiew to an elucidation of the law — 426 — applicable to the case in hand. When the position held by the prisoner in the Treasurer’s office shall be determined, with the duties devolving upon him, the case will be relieved from much embarrassment. Let us, therefore, examine it with that purpose. He held no official position under any law of the State. He was in no sense an officer of the State. He was employed by' the Treasurer as a clerk merely — a trusted, confidential servant, having, as is well stated by counsel, simply the care and custody of the State securities and funds, for a specific purpose — that of deposit. His was but a qualified possession, carrying with it no right of property. ' He held the securities and funds in or under his, custody merely, not for himself, but for his employer. He rendered no account of them, and had no duty in regard to them, save to care for them and place them on deposit for his principal. Had he then any other possession than that of servant with bare charge ? Or of a merchant’s clerk, of his employer’s goods ? Or of any hired servant, of the property placed in his charge by his employer? If not, then he could commit theft by a felonious taking and conversion. The draft came into the Treasurer’s office, and was in law in his possession, having been credited and receipted to the party entitled to the benefit of the money, directed to be paid by it. The prisoner had but the custody of it for a specific purpose. To adopt the language of the court in the case cited us, “ the custody * * * was in the defendant, but the possession in the treasurer. This being the state of affairs, the prisoner converting the chattel to his own use, was guilty of larceny, although he had no felonious intent at the time he received it.” (IT. S. v. Hutchinson, 7 Penn. Law Jour., 365.) It has been often held that a clerk who takes money from the till in the store or shop where he is employed, with felonious intent, is guilty of larceny, although he has the light to take it for a lawful purpose. The cases of similar character cited to us by the counsel for the people, in the English courts, are quite too numerous to admit of particular comment here. The rule is declared in a long line of authorities, both in England and in this country, and is well founded in reason, that when the property of a principal or master comes to the hands of his servant for a special purpose, as to deliver it to a third party, or to put it on deposit, the servant will be guilty of theft if he feloniously convert it to his — 427 — own use. This rule of law has been recognized repeatedly in our own State. In The People v. Call (1 Denio, 120), it is said that “ although every larceny includes a trespass, and cannot exist unless there has been a taking from the possession of another, yet, where one, having only the care, charge or custody of property for the owner, converts in animo far andi, it is larceny; the possession, in judgment of law, remaining in the owner until the conversion.” So, in The People v. Bennett (37 N. Y., 117), it is said that the character of one’s possession of property depends upon the tenure by which it is held. “ If he were the mere servant of the actual owner, the possession was in such owner, not in him.” “ While therefore, in the popular use of the term, the servant is said to be in possession of the master’s property, yet, in contemplation of law, he has the charge only.” And again, in The People v. McDonald (43 N. Y., 64), it is said that “ if money or property is delivered by the owner to a person for mere custody or charge, or for some specific purpose, the legal possession remains in the owner, and a criminal conversion of it by the custodian is larceny.” (See, also, Ellis v. The People, 21 How., 359 ; Hildebrand v. The People, 3 N. Y. S. C., 82 [S. C., 1 Hun, 19]; affirmed in Court of Appeals, 56 N. Y., 394; Weyman v. The People, 4 Hun, 511.) How, and precisely under what circumstances, the prisoner took the draft in this case does not appear. It came to the Treasurer’s office, and entries in the boobs were made therefrom. Where it was placed, deposited or kept while it remained in the office does not appear. The prisoner had the custody of it, undoubtedly, and the right to make deposit of it in bank. This it was his duty to do as clerk of the Treasurer. But instead, he took and appropriated it to his own use ; purloined it. Now, whether such appropriation of the draft by the prisoner was or was not felonious, depended on his intent, and was a question of fact for the jury on the proof. It was for the jury to say whether he acted with intent to steal. The jury found against him, and the verdict is abundantly sustained by the evidence. On this branch of the case there was no error. A point is made that the draft was not, when stolen, an operative legal instrument. The case shows the contrary of this. It — 428 — came to the Treasurer’s office, well indorsed to that officer, and the prisoner held a position which enabled him to purloin and use it. It was enough, that he deprived the owner of his property with felonious intent. (2 Leach, 699 ; 3 Chit. Cr. Law, 932.) As regards the admission or rejection of evidence, we find no ground of error. What remains of the case pertains to exceptions interposed to portions of the judge’s charge, and to his refusal to charge as requested. These exceptions are disposed of, as is believed, by the previous examination of the case. They pertain to subjects already considered. It may be added that they are to be viewed in the light of the entire charge as delivered, as the judge called especial attention to this fact, and in effect qualified his rulings so as to accord with his views as expressed in the charge. Thus considered, the submission of the case to the j ury seems free from error. The charge of the learned judge was direct and clear in all its parts, and was eminently just and fair in its general tone. The judgment should be affirmed. Present — Learned, P. L, Bookes and Boardman, JJ. Ordered accordingly.