38 How. Pr. 475 | New York County Courts | 1869
The prisoner was convicted of grand larceny at the last term of this court, in feloniously stealing a tin box of the value of five dollars, and certain papers described as instruments in writing, consisting of three several receipts for money, and three certificates of stock in incorporated companies. Each receipt was for more than twenty-five dollars, and each certificate was for a number of shares, pur porting to be of the value of more than twenty-five dollars. Upon the trial, no evidence was offered as to the value of those documents, for the reason, as was claimed by the prosecution, that the statute fixed such value, and the court so held for the purposes of the trial, reserving, however, the final determination of the question for subsequent consideration. It was contended by the defendant’s counsel that the receipts
Larceny at common law could only be committed of goods which had some worth in themselves, and did not derive their value merely from their relation to some other thing, hence written instruments were not the subject, of larceny whether they related to real estate or concerned' mere choses in action. If they related to. real estate the taking was merely trespass, for the reason that such insruments were supposed to savor of the realty and were considered a part thereof, descendible with it to the heir 5 and if they were mere choses in action as bonds, bills or notes, they were held not to be goods whereof larceny could be committed, being of no intrinsic value and not importing any property in the possession of the person from whom they were taken. (1st Hawkins Pleas of the Crown C., 32 S.. 35 ; 4, Blacks tone’s Comm., 234 ; 2d East Pleas of the Crown C., 16 8., 35 p., 597; 2d Bussell on Grumes 69, and sergeant Hawkins says the reason why a felony could not-be committed of such things was that “being of no use but to the owner, they are not supposed to be so much in danger of being stolen, and therefore need not be provided for in so strict a manner as those things which are of a known price and everybody’s money.” (The King agt. Webster, 1 Leach Cr. G., 16 ; 1 Hawkins, P. C., 142;) • Various laws were passed from time to time in England for the protection of this kind of property, all of which were consolidated by the 1th and 8th Geo., 4 G. 27, 85, and those acts made the stealing of every species of valuable written security a felony of the same nature and degree and punishable in the same manner as the stealing of any chattels of like value. The law also fixed the value of such property,
The same principle seems to have guided the framers of our statute upon this subject, which declares after defining the crimes of grand and petit larcenygrand larceny being the felonious taking and carrying away the personal property of another of the value of more than twenty-five dollars; and petit larceny the stealing, taking and carrying away the personal property of another of the value of twenty-five dollars, or under ; that “ the term personal property as used in this act shall be construed to mean goods, chattels, effects, evidence of right in action, and all written instruments by which any pecuniary obligation or any right or title to property, real or personal, shall be created, acknowledged, transferred, increased, defeated, discharged or diminished.” (2d Rev. Stat., 726, S., 33.) This statute has reference very clearly to instruments which as such merely, have the legal effect and operation contemplated thereby. The instrument of itself alone must create, acknowledge, transfer, increase, defeat, discharge, or diminish a pecuniary obligation or a right or title to property, real or personal.
Now common receipts such as are described in the indictment cannot be properly called instruments at all, for such documents have no legal effect as instruments whatever, they are at most but acknowledgments in writing of full or partial payment and may be used in evidence to prove such payment. But they cannot be pleaded, and when proven may be explained or contradicted; they are mere written admissions and' can only be treated as such Not so with releases either general or special; those are instruments having a recognized legal force and effect, they may be
4 Parker’s Criminal Reports, p. 245, and the principles there laid down are entirely in accordance with the law as I understand it, and the distinction is noted between common receipts and accountable receipts, warehouse receipts and others of such nature. Receipts of this latter description are undoubtedly the subject of larceny, but I ám satisfied that common receipts were not intended to be and are not embraced within the provisions of the statute. It is unnecessary in examining this part of the case to. refer to the section regulating and declaring the value of said instruments as within the statute, inasmuch as it can have no application whatever to a writing not within the act. I shall call attention to its provisions, however, hereafter in connection with the remaining questions in the case.
It is contended that the certificates of stock are not within the statutory definition of personal property, but that if they should be so considered, then it is claimed that the law affixes no value to them, and none having been proven, the conviction must be reversed.
The certificates, it is true, do not create, transfer, increase, defeat, discharge or diminish any pecuniary obligation or any right or title to property real or personal. They “ acknowledged/7 however, the right and title of the holder to a certain number of shares of stock in the several corporations by which they were issued, and are evidences of such right and title. This, in my judgment, brings them within the protection of the statute defining' the term “ personal property.”
A distinction is thus made between instruments “ upon which money is due, or by which money is secured and remaining unsatisfied or upon which money in any event or contingency might be collected—and instruments whereby property as distinguished from money is transferred or affected. As regards the first, it declares that the money due or secured and remaining unsatisfied, or which might be collected thereon shall be deemed the value of the instrument, and as to the second, that the value of the property transferred or affected by the instrument shall be deemed the value thereof. In the first case the value of the instrument is assertained by a reference to the amount expressed therein and remaining unsatisfied, and although as a matter of fact it may be utterly worthless or but of mere nominal value, such worthlessness cannot be shown or the