People v. Gaylord

124 N.Y.S. 517 | N.Y. App. Div. | 1910

McLennan, P. J.:

The evidence establishes beyond doubt that the defendant and one Charles A. Klock were in the employ of the Forest, Fish and Game Commission of the State of Mew York during all the time mentioned in the indictment and were thus engaged to watch, patrol and protect a portion of the forest preserve of the State of Mew York located in the town of Wilmurt, county of Herkimer. The charge is, in substance, that the defendant acting in concert with Charles A. Klock, cut or caused to be cut 50,000 spruce logs, of the value of $20,000, on such lands and belonging to the State, and being a part of its forest preserve. The evidence tends to show that in the fall of 1904 the defendant had a conversation with one George Vincent, a jobber and lumberman, in reference to cutting some timber Upon the forest preserve in said town of Wilmurt, and that in pursuance of the arrangement made with the defendant, Vincent cut in the fall of 1904 about 500 logs on said premises. The evidence tends to show that the defendant represented to Vincent that the State of Mew York was entering upon a plan of cutting all the timber, exceeding ten inches in diameter, on the tract in question, and that he, the defendant, wanted Vincent to do such cutting, and the defendant stated to Vincent according •to the evidence that the timber so cut was to be sold to other parties and that the other parties so buying the timber cut xyould pay him (Vincent) for the cutting. In pursuance of such talk or agreement or representations made by the defendant, Vincent commenced cutting such timber in May, 1905, and continued up to the 2d of August, 1905, and employed for such purpose twelve to eighteen men, until he was stopped by the officials of the Forest, Fish and Game Commission, and at the time Vincent was stopped by such action of the said authorities he had cut down 50,000 thirteen-foot logs, which were the equivalent of about 5,000 cords of pulpwood, and had drawn and put in the skid 26,000 logs, or a little more than ha'll' of the cutting. After the defendant had made arrangements with Vincent to cut the said timber he went to Forrestport and there saw James Gallagher, a lumberman-having a sawmill, and also Albert Harrig, a member of the firm of Syphert & Harrig, who were also owners of a sawmill located at Forrestport, H. Y., and the defendant falsely stated to them that thé State of Hew Yoik was to make an experiment in forestry' and had determined to .cut the timber down to ten inches oh the stump and see what effect it would have on the small timber; that they would sell it at one dollar and fifty cents a cord, and after some negotiations the defendant made a-, contract with Gallagher to take about 3,000 cords, and with Harrig to take about 2,500 cords. At the time the arrangements were made, with Gallagher and Harrig to take the logs which had been cut upon said land, lie stated that it would be necessary for them to pay a small judgment and to consent. to a complaint made by him as one of the inspectors of the' Forest, Fish and Game Commission practically in order that the State department should not be thus apprised of the actual conditions which were going on and being consummated under th.e direction of the defendant. And siich complaints and arrests thereunder having been made and all the'parties having been .fined practically under the direction of the defendant, the unlawful and wicked scheme devised by the defendant to procure to be cut and to be sold the trees and logs belonging to the State was carried into effect and consummated.

The evidence tends- to show that the timber was cut by the defendant’s agent and employee, James Vincent; that- the defendant profited and benefited by the transaction together with his 'accomplice, Klock, the other defendant, by receiving $7,750 in cash, and that' the timber belonged to the State of Hew York ; that the defendant had no right to cut, sell or remove the same, or procure the same to be cut or removed.

The facts in plain English are that the defendant and Klock, who were employed by the State to patrol and protéct its forest preserve and see that its timber .was not wasted or despoiled, entered into an understanding, contract or arrangement, no matter which, by which they permitted Vincent to cut down the. trees in question; that they then made arrangements with James Gallagher and Harrig by which such persons should receive the trees and timber so cut at a certain price, they-agreeing to pay Vincent for the cost of the cut--ting.- Under the directions of the defendant such timber over" which he was in charge as agent or custodian of the State was permitted to be cut by Vincent, was by him sold to Gallagher and Harrig, they agreeing to pay Vincent for the cost of cutting, and as a result there was paid over to the defendant and Block the sum of $7,750, Harrig paying $4,000 and Gallagher paying $3,750, and they gave receipts therefor, which money the proofs show was never turned over to the State department but was kept and retained by the defendant and his codefendant, Block.

Upon the facts as thus stated, and practically proven without contradiction, it would seem that the defendant was guilty of larceny in the first degree, provided the value of the timber or logs thus sold by him exceeded the sum-of $500. If this was a charge against a defendant, the complainant being one of the citizens of the State, it would hardly seem possible that under the facts here presented such defendant would not be guilty of the crime of larceny. In the case at bar the defendant was placed in charge and made the custodian of the property in question. He assumed unlawfully and without any authority to give another the right to cut down such timber and then assumed to sell to another party or parties such timber so cut, the defendant himself receiving the value of such lumber.

It seems to us that in the ordinary sense such action on the part of the defendant would amount to larceny in the first degree, provided the value of the timber thus sold by him was of sufficient amount. But it is urged, in substance, that the trees, timber and logs upon the forest preserve of the State are not property within the meaning of the larceny statute. (See Penal Code, § 528 et seq.) This is urged because of the provisions of the amended Constitution which provide that “ The lands of the State, now owned or hereafter acquired, constituting the forest preserve as .now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or' be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” (N. Y. Const. art. 7, § 7.)

It seems clear that by such constitutional provision it was not intended that the State might .be despoiled of its property any more than any other citizen and that the larceny statute protects it (the State) as to its lands the same as any of -its citizens. The State of Hew York has spent-minions of dollars to acquire its forest preserve. It was purchased from private individuals, and when title vested'in the State it had commercial value and all the attributes of property. It is inconceivable that the constitutional amendment or provision prohibiting the sale of such land has divested it ‘of its property attribute.

The same suggestion applies to the point urged by appellant’s counsel that the property taken was without value, because it had been deprived of its value by reason of the fact that the Legislature had prevented its sale in the market. \ It had an intrinsic value. Such intrinsic value was in the State, and it is idle to say,' as it seems to .me, that it had no value because by the Constitution of the State it was provided that it could not be sold in the market.

It would seém unnecessary to go further into a discussion of the facts in this case or of the law applicable thereto.. The defendant, as clearly established by the evidence, while engaged to protect the forest preserve of the State, entered upon a scheme by which another should cut a large number of trees upon such preserve and by which still another should purchase such trees illegally cut or illegally authorized to be cut by the defendant, and that as a result of such contract of purchase the defendant received between $3,000 and $4,000 for his agreement to permit the cutting and the delivery of the trees or logs to the third parties, whiclrlie was charged with the duty of protecting. .In other words, the defendant assumed to sell the property of the State, assumed to procure it to be put in proper and suitable condition for sale and delivery. It was so cut; it was so put under his direction into suitable condition for delivery; it was delivered, and there was paid as the result of such transaction $7,750 to the defendant and his associate, Charles A. Klock.

It séems to me that these facts were amply supported and corroborated by the evidence of the witnesses John Bellinger, Anthony Coleman, Napoleon Biron, Arthur Lavoy and Daniel Patterson. While Vincent, Gallagher and Harrig may possibly be regarded as accomplices, the witnesses just referred to cannot be so classified.

It seems to me that, the other question raised, that the district attorney made improper remarks in'his address'to the jury, was properly taken care of by the remarks and charge of the court.

It is further concluded that there was no reversible error committed by the court in refusing to charge as requested by the defendant’s counsel.

I conclude that the judgment entered upon the verdict of the jury of guilty should be affirmed.

All concurred.

Judgment affirmed. _