83 N.Y. 408 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *410 The averment in the indictment was that the property stolen was owned by a body corporate. It named the corporation by its true corporate name. It might have stopped there; for all that is needed in an averment of ownership in a corporation is to state the fact of ownership in a corporate body, and to give the name of the corporate owner correctly. The indictment went on to aver that it was a corporate body organized and existing under the laws of the State of New York. On the trial, the people proved by documentary evidence the due organization and existence of the corporation under the laws of the United States, by the name set forth in the indictment. There was no objection made to the evidence thereof, that it was a variance from the averments of the indictment. When the people rested, the prisoner moved to quash the indictment and that he be discharged, on the ground that there was no proof that the property was in the ownership of a corporation organized under the laws of the State of New York, as was averred in the indictment. After the jury had given in their verdict of guilty, the prisoner moved to arrest judgment on the same ground. And this raises the question whether the questionable averment in the indictment was surplusage *412 that need not be proved. Allegations that need not be proved are surplusage, and may be rejected. It was necessary to prove in this case that the owner of the property was a corporation, and that it existed by the name given to it in the indictment. To establish that fact, it was not necessary to prove that it was created under the laws of the State of New York; for, as we have seen, it was fully established without. All that was needed for making out an owner of the property was proved. All was proved that was essential to have been averred in the indictment to have made a substantial and formal allegation of ownership and of the owner. Nor were the people confined to proof of an organization under the laws of this State, unless the unnecessary averment thereof, having been needlessly made, thereby became a material ingredient in the description of the owner, requisite for subsequent identification. The object of a description with certainty of an injured party in an indictment is to identify the particular fact or transaction on which the indictment has been founded. This is, that the accused may have the benefit of an acquittal or conviction thereof, if thereafter again accused for the same offense. Now, can there be any doubt, if the prisoner should be a second time accused of stealing this property, as that of the Farmers and Mechanics' National Bank of Buffalo, but that the identity of the owner, and that of the transaction, would be apparent? It seems to us that there would be none. The averment was then surplusage, that might be disregarded.
There was not proof that the prisoner was present at the warehouse from which the property was taken; or that he was in close vicinity to it. There was proof that there was a man at the warehouse that the jury might have found was the guilty taker; but it was not conclusive. They might have found that all of the immediate actors were innocent of the intent to steal. On this state of the proof the prisoner claimed that he could not be held as a principal offender, and if at all, only as an accessory before the fact. To constitute one a principal in a felony, he must be present at the commission of it. But he need not be so near as to be an eye and ear witness of *413 the criminal act. His presence may be constructive, and that constructive presence is made out when it is shown that he acted with another in the pursuance of a common design; that he acted at one and the same time for the fulfillment of the same preconcerted end and was so situated as to be able to give aid to his associate, with a view to insure the success of the common enterprise. A waiting and a watching at a convenient distance is enough; as if, in a case of larceny, he be placed where he may learn of the whereabouts and movements of the custodian of the property, and be prepared to lure him away, or to retard him, or to give timely warning of his approach. Now there was proof here tending to show that the prisoner had part in planning the theft, and in spying out the lay of the premises where the property was stored, and in learning the ways of the keeper of them. It was in proof that one who was in fact engaged in the taking of the property sent the porter of the warehouse to the home of the keeper of the goods with a letter, and promised the porter a reward on his calling, after the delivery of it, at a given number and street. On his reaching that street, and in quest of that number, he met the prisoner, who spoke to him, and they conversed of the keeper and his whereabouts. (Com. v. Lucas, 2 Allen, 170; Com. v. Knapp, 9 Pick. 496.) The proof is not strong to show that he lay in wait to aid or to warn. It was enough, however, to go to the jury, in connection with the testimony as to his preconcert in the plan and his aid in the prior arrangement. It was enough to give legal warrant to an inference by them that he was at the place to which the porter had been directed, with the purpose of learning of the whereabouts and movements of Neff, the warehouseman, and of acting upon the knowledge thus got, as would best and his comrade either to succeed or to fly, and that the latter was aware of that support in the undertaking. The court was not called upon to say to the jury that there was no proof for their consideration of facts that if established would make him a principal in some degree.
We think that the Watson letter was properly received in evidence. It came from the hand of one of the men who took *414 away the property. It was plainly a deceptive or decoy letter. It tended strongly to show that the taking of the property was feloniously intended. It was one of the acts that were done at the time of the taking, serving to characterize the transaction. Had the man who sent the watchman with it sent by oral message the same words that the letter contained, that message would have been as admissible as was his request for the letter to be carried. That it was written, made no difference in its competency as evidence of intent. Proof of the taking was competent, though the prisoner was not present assisting in the act, and though other proof was needed to connect him with it. So proof of an act concurrent with the taking, and competent to show the intent thereof, was competent against the prisoner, though other proof was needed to connect him therewith.
A telegraphic message was taken in evidence without then or afterward connecting the prisoner with it. When it was offered by the people, the district attorney stated that he expected to show that the prisoner was once employed where he would have had knowledge of the meaning of certain marks upon it, and that if he did not by further testimony connect the prisoner with it, he "would consent that the message be stricken out." The prisoner objected, on the ground that the prisoner was not then connected with it, and to the taking of it "on the promise to strike it out" on failure to connect the prisoner with it. Thus the matter stood at the trial. We must take the place of the trial court at that stage of the proceedings, to determine whether it was in error in receiving the paper. Of course, if the district attorney had brought other proof that did connect the prisoner with the message, there would be no merit in the exception. He alleged that he could. Now if he had it in his power to do it, and the court knew that he had, it was a mere question of the order of proof, whether he should connect the prisoner with the message first, and prove the sending of it afterward, or vice versa. As the court did not know it, had it not the power to take the assertion of counsel that he expected to supply the link that would fasten to the prisoner? And was it not then also a mere question of *415
order of proof? When it can be made to appear that other proofs will probably be given which will make the questioned evidence material, the court, in the exercise of discretion regarding the order of proofs, may allow an inquiry to be made. (Per WOODRUFF, J., Cass v. N.Y. N.H.R.R. Co., 1 E.D. Smith, 525.) The court need not at once exclude relevant testimony because it does not at once establish the issue to which it relates. (Per ROBERTSON, C.J., Murphy v. Boker, 28 How. Pr. 263. See, also,Chapman v. Brooks,
When Thomas Glenn — who was called and testified as a witness for the prisoner — was under cross-examination, a copy of a telegram was shown to him, and he was asked if he received it. Objection was made that it had nothing to do with the suit and was immaterial. The telegram was not read or offered in evidence. The only fact put in evidence was that the witness had received it. We do not see that the fact had direct bearing upon the case of the prisoner. But it was asked for on the cross-examination of a witness who had been under arrest on supposition of complicity in the larceny, and on whose examination the prisoner had been a witness. Latitude may be allowed in the cross-examination of a witness, and as no use of the fact was afterward made or suggested, we do not see that it was error to receive it.
These are all the allegations of error presented to us by the plaintiff in error. None of them are fatal to the judgment, and it should be affirmed.
All concur.
Judgment affirmed.