People v. Stein

Parker, J. —

The first count charges that the defendants did unlawfully, unjustly and feloniously receive certain personal property of the goods and chattels of Lewis Goldsmith, which had been feloniously embezzled of the said Lewis Goldsmith by Moses Barks, the said defendants at the time well knowing the said goods and chattels to have been feloniously embezzled, &c. It is objected that this count is defective in not alleging that Moses Barks was the clerk or servant of Lewis Goldsmith. Such an averment would certainly be necessary in an indictment against Barks for the embezzling. (People v. Allen, 5 Denio, 76.) So would an averment of time and place in larceny. But it has been decided that an averment of the time and place of a larceny is not necessary in an indictment for receiving the stolen goods. (12 Blackford R. 103.) The same averments are not necessary in an indictment for receiving stolen or embezzled goods which are necessary in an indictment for stealing or embezzling. In an indictment for receiving embezzled goods, the facts necessary to be averred are the felonious embezzling and the felonious receiving. In such case, I think, an allegation of such felonious embezzling and receiving with a description of the property and the name of the owner as well as of the person embezzling, is sufficient, without setting out the particular relation existing between the owner and the person embezzling. The means by which the embezzling was accomplished need not be stated in an indictment for receiving. It is by means of the peculiar relation existing, that access is obtained and the property converted. An allegation of a felonious embezzlement includes within it and covers all the minor circumstances which go to make up the offence. They are matters of proof necessary to support the general allegation put in issue by the plea of not guilty. We think the objection to the first count was not well taken.

But if we are wrong on this point, it is not a reason for reversing the judgment, if the second count is good. We can not follow the decision of the English House of Lords in O’Connell and al. v. The Queen. (11 Clark & Fin, 155.) That case was decided by the Law Lords by a vote of 3 to 2 and adversely to the opinions of the majority of the judges of England, who were consulted. In this state, the law has been regarded as well settled, and it has been repeatedly held, that in a criminal case one good count is sufficient to support a general verdict of guilty, however defective the others may be. (1 Ch. Cr. L. 249; Am. ed. of 1836, ib. 638; People v. Curling, 1 Johns. R. 320; People v. Wiley, 3 Hill R. 194.) Though the law is otherwise in a civil case, for ti e reason that damages are given by the jury, and being entire, the court can not apportion them.

There was no valid objection to the form of the second count. If properly punctuated, it alleged tie stealing from Lewis Goldsmith, and the receiving from Moset Barks. With this reading of the count, it is not denied but it was supported by the evidence.

The court below was asked to charge, that the indictment being joint against all the defendants, a joint act must be proved against all in order to convict all. The court refused so to charge and the defendants excepted.

This proposition standing alone and unexplained was undoubtedly correct; but it must be taken and considered as qualified by what the court did charge, viz.: that if the jury believed that any one of the defendants was guilty of receiving, &c., he could be convicted under the indictment; and that all whom the jury believed to have so received the property could be convicted upon the indictment and under the evidence in the case, though the receiving was at different times and places and although all the defendants were not present.

The whole taken together shows clearly that the question made was, whether, to convict all, it was necessary that all should be present at one time and place, engaged in the receiving. And the court rightly held, that all whom the jury believed to have so received the property,. that is, all who were proved to have confederated in the transaction, could be convicted, though the receiving was at different times and places, and although all the defendants were not present. The question of the confederacy of the defendants was thus fairly submitted to the jury, and if that was established, those absent as well as those present, were equally guilty. And if all confederated for the purpose of the transaction, and it was accomplished, though at different times and places, sometimes a part of the confederates being present and sometimes others, there is no doubt all were properly conv'cted.

We think there was no error committed in the court of sessions, and the proceedings in that court must therefore be affirmed and the case remitted, that judgment may be given in accordance with the verdict.

Proceedings affirmed.