12 N.Y. Crim. 116 | NY | 1897
Aside from the reporter's memorandum at the foot of the opinion rendered in the Appellate Division, nothing in the appeal book shows whether the affirmance of the judgment upon the verdict was by a unanimous decision of the court or not. But a consideration of the evidence satisfies us that it was sufficient to support the verdict of the jury and the opinion, which was filed upon the affirmance in the Appellate Division, carefully and satisfactorily reviews all the material questions in the case, except one; to which reference will hereafter be made.
The opinion of the court, with great elaboration and clearness, discusses the evidence which was relied upon to establish the guilt of the defendant and the questions of law which arose upon the rulings of the trial judge. Upon the question of whether the evidence was such as to satisfy the requirement of the law, that the possession by the defendant of a portion of the stolen property was a conscious and an exclusive possession, the opinion states the true rule. A diamond, which, according to the evidence given by the prosecution, was one of the articles stolen from Mrs. Barnes' house, was found by a police officer in one of the bureau drawers in the bedroom of the defendant's apartment. The drawer contained only articles of man's attire and the diamond was found in a small purse under a newspaper, covering the bottom of the drawer. *406 It is contended in behalf of the defendant that, as the defendant shared his apartment with two white women, that that fact militated against the inference of an exclusive possession by the defendant. But the contention is without force, when we consider the circumstances connected with the place and mode of concealment of the stolen property; and, especially, when we consider, also, the fact that when the defendant was arrested, he was in the company of the man charged to have been his confederate and upon whose person another diamond, part of the stolen property, was found concealed. There was enough in the evidence to throw upon the defendant the burden of explaining to the jury the possession of the property, as the opinion below well held. The rule of law is well settled, that no presumption of guilt can be raised from the possession of stolen property, except where the possession is shown to be conscious and exclusive on the part of the defendant. This latter fact must be established; but, in the present case, the circumstances, as shown by the evidence for the prosecution, were such as to fairly furnish to the jury an inference of a conscious and exclusive possession, which no evidence on the part of the defendant in this record goes to repel.
The important question in this case, which we are called upon to consider, arises upon the indictment. The defendant demurred to it, for charging more than one crime, within the meaning of sections 278 and 279 of the Code of Criminal Procedure. The demurrer was disallowed and the defendant was required to plead. The Appellate Division refused to consider the objection to the indictment, upon the ground, as expressed in the opinion, that the objection was not taken at the trial, nor presented in such form as to enable it to be considered. In this the learned justices below were mistaken and have failed to apprehend the force of those provisions of the Code of Criminal Procedure, which bear upon the subject of an appeal from a judgment of conviction. Section 485 of that Code requires the clerk to annex to the judgment roll, upon a conviction, the indictment and a copy of the minutes of the pleading or demurrer. Section 517 provides that, upon the *407 appeal which is allowed to the defendant to the Supreme Court from the judgment on a conviction, any actual decision of the court in an intermediate order or proceeding, forming a part of the judgment roll, as prescribed by section 485, may be reviewed. This provision imposes upon the Supreme Court the duty of reviewing the determination made upon the demurrer to the indictment; and the same duty is imposed upon us by section 519; which provides for an appeal to this court from a judgment of the Supreme Court, affirming the judgment of conviction. The Code of Criminal Procedure does not seem to require that the objection once taken by demurrer to the indictment should be also raised in some form after the trial has been entered upon. It was before the Supreme Court upon the defendant's appeal and as its judgment must be deemed to comprehend the review of the determination upon the demurrer, that question is also before us upon this appeal.
The question then is, whether this indictment was invalidated by reason of an improper joinder of crimes. Section 278 of the Code of Criminal Procedure provides that, "the indictment must charge but one crime and in one form, except as in the next section provided." The next section provides that, "where the acts complained of may constitute different crimes, such crimes may be charged in separate counts." In this indictment the defendant is charged in the first count with the crime of burglary, in forcibly entering the dwelling house of Mrs. Barnes, with intent to steal her property, assisted by a confederate. He is charged in the second count with grand larceny, committed at the same time and place, and in the third count he is charged with the crime of receiving the property described in the second count, knowing it to have been stolen. So far as the counts for burglary and for grand larceny are concerned, their joinder in the same indictment seems to be expressly authorized by section 506 of the Penal Code; which provides that, "a person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each *408
crime separately, or in the same indictment." That section contemplates a state of facts similar to those set forth in this indictment; and section 279, obviously, must also have reference to a condition of things, where the evidence as to the defendant's acts may fail as proof of a forcible entry and be insufficient to establish the crime of burglary; but would be sufficient to establish the crime of grand larceny. Section 279 was evidently designed to meet the case of a felonious transaction, to which all the counts relate and where the evidence introduced upon the trial will determine the nature and extent of the defendant's connection with it. The evidence might satisfy the jury that the defendant feloniously took away the property described in the indictment and thus committed the larceny; or, if it failed to establish that he actually took it, that there was such a conscious and exclusive possession of a part of the stolen property by him, recently after the crime as, unexplained, to warrant them in convicting him of the larceny. (Knickerbocker v. People,
The judgment appealed from should be affirmed.
All concur, except BARTLETT, J., who dissents on the ground that counts for the crimes of burglary and receiving stolen goods cannot be joined in the same indictment, and also on the merits, and MARTIN, J., dissenting.
Judgment affirmed.