People v. Moran , 7 N.Y. Crim. 329 ( 1889 )

Van Brunt, P. J.

The evidence in this case showed that the defendant attempted to pick the pocket of a lady in the city of New York. There was no evidence whatever from which it could be inferred that the lady in question had any property in her pocket, and the appellant contends that it was necessary to prove that there was property in the pocket in question, in order to warrant a conviction on this indictment; and this is the question brought up by this appeal. In the consideration of this question, it may be proper to refer to the history of the law in reference to crimes such as it is claimed the defendant committed. By Rev. St., pt. 4, c. 1, tit. 7, § 3, it is provided that “every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, * * * shall * * * be punished,” etc. It has been held in the state of Massachusetts, under a similar statute, that, although it did not appear that there was any property to be stolen, yet, as the attempt to steal constituted the crime, and that, as an attempt is simply to make an effort to effect some object,—to make a trial or experiment,—therefore, the prisoner, by thrusting his hand into a pocket, makes an attempt to pick a pocket, although he does not succeed, because there happens to be nothing in the pocket. It, however, appears from the legislation in this state that such was not deemed to be the rule by our legislature, because, by chapter 508 of the Laws of 1860, after having provided by section 33 that picking pockets in the city and county of New York should be punished as grand larceny, although the value of the property taken should be less than $25, and that attempts under similar circumstances should be punished as for attempts to commit grand larceny, it provided by section 34 that “every person who shall lay hand upon the person of another, or upon the clothing upon the person of another, in said city and county, with intent to steal, as a pickpocket, under such circumstances as shall not amount to an attempt to rob or an attempt to commit larceny, shall be deemed guilty of an assault with intent to steal, and shall be punished as now provided by law for the punishment of misdemeanors. It shall not be necessary to allege or prove, in any prosecution for an offense under this section, any article intended to be stolen, or the value thereof, or the name of the person so assaulted.” This legislation clearly shows that it was the opinion of the legislature that an attempt to pick a pocket that had nothing in it was not a crime which might be punished as an attempt to commit grand larceny; because, by the provisions of the previous section, an attempt to pick a pocket in the city of New York might be punished as for an attempt to commit grand larceny. Now, if it had not been supposed that unless there was some proof of property no crime would be made out, what could have been the possible reason for the adoption of section 34, particularly in view of the last clause, which provides that for the establishment of the offense mentioned in that section it shall not be necessary for the prosecution to allege or prove any article intended to be stolen, or the value thereof, or the name of the person so assaultéd ? If an attempt was intended to be construed to mean simply the making of an effort to steal, as a pickpocket, there could have been no possible necessity for providing for the crime mentioned in section 34, because the legislation of the previous section would then have covered the whole ground embraced within the provisions of said section 34. It seems to us, therefore, that the only interpretation that can be placed upon these sections is that, unless the existence of property was proven, no conviction of an attempt to commit the crime mentioned in section 33 could be maintained.

This legislation contained in sections 33, 34, was attacked upon the ground that it was unconstitutional, in that the law was a local one, and did not comply with the requirements of the constitution, but it was maintained finally by the court of appeals; and it would appear that because of this attack the legislature passed, in 1862, chapter 374,' in which it incorporated this same legislation, making it embrace the whole state. This was the condition of the law at the time of the adoption of the Penal Code. The codifiers, in the spirit of improvement which seems to have guided them in the codification of the law, entirely changed the language of the definition which had long prevailed, under the Revised Statutes, as to what should be deemed an attempt to commit a crime; and it cannot be said that they have added anything in lucidity, although, perhaps, their definition is more brief. Section 34 of the Penal Code provides that “an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” We do not see that the section in question is any broader than the statute, nor have we any reason to believe that the legislature intended that it should have any greater scope. We have been unable to find, however, any provision in the Penal Code which embraces section 34 of chapter 508 of the Laws of 1860, or section 3 of chapter 374 of the Laws of 1862. And under section 725, notwithstanding the adoption of the Penal Code, those acts necessarily remained in existence, as such section provides that all acts defining and providing for the punishment of offenses, and not defined and, made punishable by the Code, should not be affected by the provisions in the Code, but were to be recognized as continuing in force, notwithstanding the provisions of the Code. The next legislation affecting this subject is to be found in chapter 410 of the Laws of 1882, where, by sections 1446, 1447, sections 33, 34, c. 508, Laws 1860, were re-enacted, and made part and parcel of the act of 1882,—another legislative interpretation of the previous enactments that it was still the opinion of the legislature that a person could not be convicted of an-attempt to commit grand larceny by proof of an attempt to pick a pocket, without proof of property.

Therefore, as the law stood after the adoption of the consolidation act, above mentioned, the proof in the case at bar was sufficient to convict the offender of the offense defined in section 34 of chapter 508 of the Laws of 1860, but was not sufficient to convict the offender of an attempt to commit grand larceny under section 33 of the Laws of 1860. In its definitions of larceny the Code has embraced the picking of pockets, making, however, the offense greater where it is committed in the night-time than where it is committed in the day, but both being felonies. Therefore, under the interpretation which must necessarily follow the legislative interpretation of its previous acts upon this subject, and the interpretation given to those acts even after the adoption of the Penal Code, we think it must be held that the evidence in this case did not authorize the conviction of the defendant of the crime of attempting to commit the crime of grand larceny in the second degree.

But we are told by the learned counsel for the people that, if this construction is sound, a known thief may pass around in a crowd, in full view of a detective officer, and place his hand in the pockets of different people, manifestly with the intention of picking pockets; because, by chapter 593 of the Laws of 1886, chapter 508 of the Laws of 1860, and chapter 374 of the Laws of 1862 have been repealed. The statement as to the repeal seems to be correct; and, if we had to depend upon the laws of 1860 and 1862 for the punishment of this offense, it certainly would be impossible to do so, because of the repeal of those statutes. But the provisions of sections 33, 34, of chapter 508 of the Laws of 1860 are still part of the law, because they are part of chapter 410 of the Laws of 1882; and they have not been repealed, and they apply to the city and county of Sew York, in which this crime was committed, and in which county the punishment there fixed may be inliicted. So far as this county is concerned, therefore, no such dire results will arise as is claimed on the part of the learned district attorney, although the application of the law to the other parts of the state seems to have been repealed by the wholesale repealing act above mentioned. This result, however, cannot affect the conclusion to which we must come; and, if other legislation is necessary in order to place the criminal law in the position it was before the codification, that is a question for the legislature to consider in the future.

We are of the opinion, therefore, that the defendant was wrongfully convicted in the case at bar, and that the only conviction which the evidence justified was for the crime specified in section 1447 of chapter 410 of the Laws of 1882. And, as the indictment is entirely defective upon this question, it would seem that the judgment must be reversed, and the prisoner discharged.