Klein v. . the People , 31 N.Y. 229 ( 1864 )

The prisoner was indicted with Barbara Klein for grand larceny. When the case came on for trial, Klein pleaded guilty of an attempt to commit grand larceny. Myer was then tried and found guilty. The prisoner now moves in arrest of judgment, on the ground that both defendants must be convicted of the same offense, and not of different grades of offense. There can be no doubt that one defendant might have been acquitted and the other convicted, and such conviction have been good. And it has been held that where two are charged with a joint offense, either may be found guilty. (R. v. Hempstead, R. R., 344.) But where persons are jointly indicted for a joint offense, they cannot be convicted of separate offenses; and if the act is indivisible, such as conspiracy or riots, then one cannot be convicted without the other. (Stephens v. State, 14 Ohio, 388; State v.McD., 6 Bennet, 272; Addis., 334.) But, except in indictments for offenses necessarily joint, joint defendants may be convicted of different grades (Shorese v. Caw, 5 Barr., 83; R. v.Butterworth, R. R., 520); and they may be convicted of different degrees of criminality in the same offense, where the defendants may act different parts in the same transaction. Thus, where two defendants are charged with murder in the same indictment, the jury may find one guilty of murder and another of manslaughter. (United States v. Harding, 1 Wall., Jun., 127;Mack v. State, 32 Miss., 406.) So in a charge of burglary: one may be convicted of burglary and another of grand larceny, where the first one broke open the house and the other afterwards entered, and the two committed the larceny. (Russ. Ry. C.C., 520.)

In the present case, the prisoner Klein pleaded guilty of an attempt to commit grand larceny. This she might have done without necessarily being proven guilty of the further offense. After the plea was put in, she was considered as if she had been tried separately and acquitted, or convicted of a lesser grade. It did not prevent the trial of the prisoner Myer, nor his conviction of the whole charge, any more than if both had been indicted for murder, and one on a separate trial had been convicted of manslaughter; or, in an indictment for burglary, if one had been convicted of larceny, the other might afterwards be convicted of burglary.

I understand the rule to be, if both are convicted of offenses in the same continuing transaction, they may be convicted of different degrees, if the prisoners take different parts in the commission of the same offense.

The prisoner was properly convicted, and the judgment should be affirmed.