People v. Jaffe

Clarke, J.:

The defendant was indicted for the crime of criminally receiving stolen property, in that “ twenty yards of cloth of the value of twenty-five cents each yard, of the goods, chattels and personal property of F. Horton Goddard, Wilmer A. Baldwin and Joseph Mathers, copartners in trade, then and there doing business in and by the firm name and style of J. W. Goddard & Sons, by a certain person or persons to the grand jury aforesaid unknown then lately before feloniously stolen, taken and carried away from the said copartners unlawfully and unjustly did feloniously receive and have, the said Samuel Jaffe, then and there well knowing the said goods, chattels and personal property to have been feloniously stolen, taken and carried away.”

Section 550 of the Penal Code provides that “ a person who buys or receives any stolen property . . . knowing the same to have been stolen ... is guilty of criminally receiving such property.” The gist, therefore, of the crime charged in the indictment was the receiving, stolen property, knowing the same to have been stolen. Upon such charge, the People were required to prove that the property received was, as matter of fact, stolen property, and that at the time defendant received the same he knew that it had been stolen.

The proof shows that some time prior to October 6, 1902, the date laid in the1 indictment, a clerk in the employ of Goddard & Sons stole goods from that firm and, as he claims, sold them to the defendant, who kept a small tailor shop. Ho charge is made against the defendant with respect to these earlier transactions; their relevancy was upon the question of the defendant’s knowledge that the goods which the indictment charges he received were stolen. The proof as to the goods covered by the indictment tended to show that Sadler, the clerk, stole the roll of cloth, which he rewrapped and placed in a certain place in the store, from which place Donegan, another employee, took it to a certain shoe store, at which place, some three days afterwards, Sadler got the roll. Goddard & Sons had discovered the facts-, or Sadler had made a confession; at any rate, Mr. Marratt, the manager of Goddard & Sons, was at the shoe store when Sadler got the roll, and followed him out and went with him to police headquarters, followed by several detectives. At police headquarters the package was opened, Marratt identified the goods as the property of Goddard & Sons, cut the piece up unto three parts and marked each for identification. Marratt then carried the cloth up as far as Twenty-third street and handed it to Sadler. Marratt testified that in everything he did he acted as the representative of the Goddards with full authority, and that it was. done pursuant to a prior arrangement with the police detective who was in charge; that Sadler was sent to. the shoe store pursuant to. that arrangement, and that his instructions, the cutting of the goods and his going to the place of defendant Jaife, were all pursuant to this arrangement. “ His authority was to endeavor to sell these goods to the defendant.” Sadler, in accordance with this arrangement and these instructions, took the cloth to Jaffe, who gave him $2.50. The evidence is sufficient to have warranted the jury to find that the defendant received the goods believing them to have been stolen.- So-, also, the evidence is sufficient to warrant the finding that the goods had been stolen.

The district attorney conceded upon the trial and the entire case, from first to last, by all parties, was tried upon the assumption, however, that when these goods were received by the defendant they had lost the character of being, stolen goods. This may be clearly demonstrated from this extract from the record: “ The court: It is conceded here that the property in question was first stolen . . . and subsequently taken back into the posession of Goddard & Company.

“Mr. Jerome. So that at the time of its alleged receipt by this defendant, or prior to- the time of its alleged receipt by this defendant, its possession had been recovered by the owner.

“Mr. Levy. And before it, had gotten into the possession of the defendant?

“ Mr. Jerome. Tes.

“ Mr. Levy. In other words, there had been a recovery by the owners of the property.

“ Mr. Jerome. So that at the time the goods were actually conveyed to this defendant they were not then and there stolen goods.

“ Mr. Levy. They had lost the character of being stolen goods.

“ Mr. Jerome. That is entirely correct.”

The district attorney’s brief upon this appeal states as follows : “Various- passages in the record show that the People conceded on the trial (as they now concede on this appeal) that, because of the interception the goods lost their character as stolen property.” Upon those concessions, and upon this record, therefore, the question as to whether or not, by retaking the stolen goods for a short time, marking them for identification, and redelivering them to- the thief for the purpose of having him deliver them to the receiver, under the belief on the receiver’s part that they were stolen—in short, setting a trap for him—destroyed their quality as- stolen goods and prevented conviction of the crime charged in the indictment, is not in the case and upon it we express no opinion. A conviction of an attempt to commit the crime charged was asked and the jury upon that proposition found the defendant guilty.

The question here is, was the defendant properly found guilty of an attempt to receive stolen property, knowing the same to have been stolen, when it is conceded that the goods were not stolen property when received by him and, therefore, it was impossible for him to know that they were stolen. Can he be convicted of the attempt, when the crime attempted was impossible of commission?

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.” And section 35 thereof provides that, “ upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.”

The learned counsel for the defendant states his position as follows: “ The learned district attorney concedes it was legally impossible for the defendant to commit the crime charged in the indictment upon the state of facts disclosed at the trial. Therefore, the question presents itself, whether one can in contemplation of our Penal Code and the criminal law so attempt to do what is legally impossible as to make himself punishable for the attempt to commit the legal impossibility.”

In People v. Moran (123 N. Y. 254; s. c. 8 N. Y. Crim. 105) the indictment charged the defendant with an attempt to commit the crime of grand larceny in the second degree, by attempting to steal from the person of an unknown woman certain goods unknown, of the alleged value of ten dollars. The proof showed that the defendant was seen to thrust his hand into the pocket of a woman and withdraw it empty. The woman was lost in the crowd, and, of course, no proof was offered to show that she had anything of value in her pocket which could have been the subject of larceny. Huger, Ch. J., said: “ We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferable from it that an intent to commit larceny from the person existed, and that the defendant did an act tending to effect its commission, although the effort failed. The language of the statute seems to> us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, co-existed. Whenever the animo furcmM exists, followed by acts apparently affording a prospect of success and tending to render the commission of the crime effectual, the accused brings himself within the letter and intent of the statute. To constitute the crime charged there must be a person from whom the property may be taken, an intent to take it against the will of the owner; and some act performed tending to accomplish it, and when these things concur, the crime has, we tliinlc, been committed, .whether property could, in fact, have been stolen or not. In such cases, the accused has done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in fact, had been committed, and the punishment of such offender is just as essential to the protection of the public as of one whose design have been successful.” This case has been cited and followed a number of times since its rendition^ and expresses the law of the State. There was no money in the pocket; hence larceny could not possibly be committed. But one having feloniously intended to take whatever was in the pocket, and having done an act to effectuate that purpose, to wit, inserting the hand therein, the crime of attempting to commit larceny was committed.

In People v. Gardner (144 N. Y. 119; s. c. 9 N. Y. Crim. 404), the defendant was indicted for an attempt to commit the crime of extortion, by attempting to obtain $150 from Catherine Amos by threatening to accuse her of keeping a house of prostitution. The Penal Code provides (§ 552"), that “ Extortion is the obtaining of property from another with his consent induced by a wrongful use of force or fear or under color of official right.” Section 553: “ Fear such as will constitute extortion may be induced by a threat ... to accuse a person of any crime.” Catherine Amos testified that for nine years she had been the keeper of a house of prostitution in Hew York; that the defendant agreed with her that if she would pay him $150 to him he would not accuse her of the crime, and that she had been acting as a decoy for the police and trying to induce the defendant to receive the money from her under such circumstances as would render him guilty of a crime and enable the police to arrest and convict him of it. The conviction was set aside by the General Term and the discharge of the defendant ordered (73 Hun, p. 70; s. c. 9 N. Y. Crim. p. 128), Mr. Justice Eollett saying, inter alia, “ We take it to be a general rule, having few, if any exceptions, that unless the completed:' act, accomplished as intended and attempted, will constitute a crime, no step or steps taken to perpetrate the act will amount to a. crimisal attempt. . . . So in the case at bar it was a legal impossibility to commit the1 crime of extortion as against the woman Amos, because she inveigled the defendant to commit the act and was not put in fear by him.” That was a ruling on the precise point presented in the case at bar, to wit, that the goods not having, the character of stolen goods, the completed act, accomplished as intended and attempted, would not constitute a crime, and, therefore, as it was a legal impossibility to commit the crime, no steps taken could constitute an attempt. Mr. Justice O’Brien, in his dissenting opinion, said: “ If the reasoning applied to the absence of fear is good, then, unless all the elements essential to constitute the crime are present, an indictment and conviction must fall, because a conviction for an attempt cannot be sustained except in a case where the crime itself isi committed.” The Court of Appeals overruled the General Term, for while the reversal of the judgment was sustained on errors in excluding evidence, the order was modified by granting a new trial, and the opinion, it seems to me, disposed completely of the question of “legal impossibility” as affecting criminal attempts. Judge Earl said: “ The evidence tended to show the existence of every element constituting the crime of extortion except that Mrs. Amos in paying the money exacted by the defendant was not actuated by fear. It is urged on behalf of the defendant that the fact that his threats did not inspire fear inducing any action on the part of Mrs. Amos, an element essential to constitute the completed crime of extortion, renders it impossible to sustain an indictment _ and conviction for the lesser crime of an attempt at extortion.

. . . The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission., and, therefore, the act was plainly within the statute an attempt to commit the crime. The condition of Mrs. Amos’ mind was unknown to the defendant. If it had been such as he supposed, the crime could have been and probably would have been consummated. His guilt was just as -great as if he had actually succeeded in his purpose. His wicked motive was the same, and he had brought himself fully and precisely within the letter and policy of the law. This crime as defined in the statute depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced. ... In Rex v. Holden (Russ. & Ry. 154), it was held on an indictment under a statute against passing or disposing of forged bank notes, with intent to defraud, that it was no defence that those to whom the notes were passed knew them to be forged, and, therefore, could not be defrauded. In Reg. v. Goodchild (2 Carr. & Kir. 293) and Reg. v. Goodall (2 Cox Cr. C. 41), it wasi held under a, statute making it a felony to administer poison or use any instrument with intent to procure the miscarriage of any woman, that the crime could be committed in a case where the woman was not pregnant. It has been held in several cases that there may be a conviction of an attempt to obtain property by false pretences, although the person from whom the attempt was made knew at the time that the pretences were false, and could not, therefore’, be deceived. . . So far as I can discover there is absolutely no authority upholding the contention of the learned counsel for the defendant, that because the defendant did not inspire fear in the mind of Mrs. Amos by his threats, and thus could not have been guilty of the completed crime of extortion, therefore, he cannot be convicted of attempting to commit the crime. That contention is, as I believe, also without any foundation in principle or reason.”

In People v. Sullivan (173 N. Y. 122; s. c. 17 N. Y. Crim. 180), Judge Cullen cited with approval People v. Moran (supra). In People v. Mills (178 N. Y. 274; s. c. 18 N. Y. Crim. 269), the court again reviewed the subject of attempts, Judge Vann saying: “ Pelonious intent alone is not enough, hut there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result unless prevented by some extraneous cause.” People v. Moran, People v. Gardner and People v. Sullivan were all cited with approval. In People v. Conrad (102 App. Div. 566, affd. 182 N. Y. 529, supra p. 259), upon conviction of the crime of attempting to commit the crime of abortion, and in People v. Du Veau (105 App. Div. 381, supra p. 268), upon conviction of the crime of an attempt to commit the crime of robbery in the first degree, the same questions were examined and the same result was reached. So that it appears that there can be no doubt from these repeated decisions that it is now the settled law of this State, as formulated in People v. Moran, that “ The question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design.”

It is true that we have not found a case where there has been a conviction of the crime of attempting to receive stolen goods. But by our statutes, receiving stolen goods, knowing them to have been stolen, is a substantive crime; and by our statutes, an attempt to commit a crime is also a crime; and the test being as above pointed out, I can see no reason upon principle to differentiate this attempt from any other. In the case at bar, the evidence tends to show that the defendant had said to Sadler, prior to his theft of these particular goods, that he would take a roll of these linings; that Sadler took the roll to Jaffe; that Jaffe examined it; that, Siadler told him where the roll came from; that Jaffe measured the goods and paid for them. These facts, if found, were enough under the doctrine of the cases cited, to establish the attempt to receive stolen goods, knowing them to have been stolen, taken in connection with the other evidence as to knowledge or belief, denial of the purchase and concealment of the goods.

We have examined the exceptions, and find no error committed to the prejudice of the defendant.

The judgment of conviction should be affirmed.

O’Beien, P. J., Ingbaham, McLaughlin and Houghton, JJ., concurred.

Judgment affirmed.

Jaffe subsequently took an appeal to the Court of Appeals. This appeal was argued upon the 11th day of June, 1906. Upon,the 21st day of June, 1906, the judgment of conviction was reversed, and the defendant was discharged. The following opinion was handed down by the Court of Appeals:

Henry W. Unger and Abraham Levy, for appellant.

William Travers Jerome, district attorney (Eobert C. Taylor, of counsel), for respondent.

Willabd Babtlett, J.:

The indictment charged that the defendant, on the 6th day of October, 1902, in the county of Hew York, feloniously received twenty yards of cloth, -of the value of twenty-five cents a yard, belonging to the copartnership of J. W. Goddard & Son, knowing that the said property had been feloniously stolen, taken and carried away from the owners. It was found, under section 550 of the Penal Code, which provides that a person who buys or receives any stolen property, knowing the same to have been stolen, is guilty of criminally receiving such property. The defendant was convicted of an attempt to commit the crime charged in the indictment. The proof clearly showed, and the district attorney conceded upon the trial, that the goods which the defendant attempted to purchase on October 6th, 1902, had lost their character as stolen goods at the time when they were offered to the defendant and when he sought to buy them. In fact, the property had been restored to the owners, and was wholly within their control, and was offered to the defendant by their authority and through their] agency. The question presented by this appeal, therefore, is whether, upon an indictment for receiving goods, knowing them to have been stolen, the defendant may be convicted of an attempt to commit the crime, where it appears without dispute that the property which he sought to receive was not, in fact, stolen property.

The conviction was sustained by the Appellate Division chiefly upon the authority of the numerous cases in which it has been held that one may be convicted of an attempt to commit a crime, notwithstanding the' existence of facts unknown to him which would have rendered thei complete perpetration of the crime itself impossible. Notably among these are what may be called the pickpocket cases, where, in prosecutions for attempts to commit larceny from the person by pocket picking, it is held not to be necessary to' allege or prove that there was anything in the pocket which could be the subject of larceny. (Commonwealth v. McDonald, 5 Cush. 365; Rogers v. Commonwealth, 5 S. & R. 463; State v. Wilson, 30 Conn. 500; People v. Moran, 123 N. Y. 254, s. c. 8 N. Y. Crim. 105.

Much reliance was also placed in the opinion of the learned Appellate Division upon the case of People v. Gardner (144 N. Y. 119; 9 N. Y. Crim. Rep. 404), where a conviction of an. attempt to commit the crime of extortion was upheld, although the woman from whom the defendant sought to obtain money by a threat to accuse her of a crime was not induced to pay the money by fear, but was acting at the time: as a decoy for the police, and hence could not have been subjected to the influence of fear.

In passing upon the question here presented for our determination, it is important to bear in mind precisely what it was that the defendant attempted to do. He simply made an effort to purchase certain specific pieces of cloth. He believed the cloth to be stolen property, but it was not such in fact. The purchase, therefore, if it had been completely effected, could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of the defendant of a non-existent fact, although there might be a belief on his part that the fact existed. As Mr. Bishop well says, it is a mere truism that there can be no receiving of stolen goods which have not been stolen. (2 Bishop’s Hew Crim. Law, § 1140.) It is equally difficult to perceive how there can be an attempt to receive stolen goods, knowing them to have been stolen, when they have not been stolen in fact.

The crucial distinction between the case before us and the pickpocket cases, and others involving the same principle, lies not in the possibility or impossibility of the commission of the crime, but in the fact that in the present case the act, which it was doubtless the intent of the defendant to commit, would not have been a crime if it had been consummated. If he had actually paid for the goods which he desired to buy and received them into his possession, he would have committed no offense under‘section 550 of the Penal Code, because the very definition in that section of the offense of criminally receiving property makes it an essential element of the crime that the accused shall have known the property to have been stolen or wrongfully appropriated in such manner as to constitute lar-: ceny. .This knowledge being a material ingredient of the offense, it is manifest that it cannot exist unless the property has in fact been stolen or larcenously appropriated. Ho man can know that to be so which is not so- in truth and in fact. He may believe it to be so, but belief is not enough under this statute. In the present case it appeared not only by the proof but by the express concession of the prosecuting officer that the goods which the defendant intended to purchase had lost their character as stolen goods at the time of the proposed transaction. Hence, no matter what was the motive of the defendant, and no matter what he supposed, he could do no act which was intrinsically adapted to the then present successful perpetration of the'crime denounced by this section of the Penal Code,, because neither he nor any one in the world could know that, the property was stolen property, inasmuch as it was not ini fact stolen property.

In the pickpocket cases the immediate- act which the defendant had in contemplation was an act which, if it could have been carried out, would have been criminal, whereas in the present case the immediate act which the defendant had in contemplation (to wit, the purchase of the goods which were brought to- his place for sale) could not have been criminal under the statute, even if the purchase had been completed, because the goods had not in fact been stolen, but were at the time- when they were offered to him in the custody and under the control of the true owners.

If all which an accused person intends to do would, if done, constitute no crime,, it cannot be a crime to- attempt to do, with the same purpose, a part, of the- thing intended. (1 Bishop’s Crim. Law [7th ed.], sec. 747.) The crime of which the defendant was convicted necessarily consists of three elements: first, the act; second, the intent; and third, the knowledge of an existing condition. There was proof tending to establish two of these elements, the first and second, but none to establish the existence of the third. This was knowledge of the stolen character of the property sought to be acquired. There could be no such knowledge. The defendant could not know that the property possessed the character of stolen property when it had not in fact been acquired by theft.

The language used by Pugkeh, Ch. J., in People v. Moran (123 N. Y. 254; 8 N. Y. Crim. Rep. 105), quoted with approval by EarL, J., in People v. Gardner (144 N. Y. 119; 9 N. Y. Crim. Rep. 404), to the effect that “ the question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design,” although accurate in those cases, has no application to a case like this, where, if the accused had completed the act which he attempted to do, he would not be guilty of a criminal offense. A particular belief cannot malee that a crime which is not so in the absence of such belief. Take, for example, the case of a young man who attempts to vote, and succeeds in casting his vote under the belief that he is but twenty years of age, when he is, in fact, over twenty-onei, and a qualified voter. His intent to commit a crime, and his belief that he was committing a crime, would not make him guilty of any offense under these circumstances, although the moral turpitude of the transaction on his part would be just as great as it would jf he were in fact under age. So, also, in the case of a prosecution under the statute of this State, which makes it rape in the second degree for a man to perpetrate an act of sexual intercourse with a female not his wife under the age of eighteen years. There could be no conviction if it was established upon the trial that the female was in fact over tire age of eighteen years, although the defendant believed her to be younger and intended to commit the crime. No matter how reprehensible would be his act in morals, it. would not he the act forbidden by this particular statute. “ If what a man contemplates doing would not be in law a crime, he could not- be said in point of law to intend to commit the crime. If he thinks his act will be a crime this is a mere mistake of his understanding where the law holds it not to be such, his real-intent being to do a particular thing. If the thing is not a crime he does not intend to commit one whatever he may erroneously suppose.” (1 Bishop’s Crim. Law [7th ed.], sec. 742.)

The judgment of the Appellate Division and of the Court ■of General Sessions must be reversed and the defendant discharged upon this indictment, as it, is manifest that no conviction can be had thereunder. This discharge, however, in no wise affects the right to prosecute the defendant for other offenses of a like character concerning which there is some proof in the record, but which were not charged in the present indictment.