8 Barb. 637 | N.Y. Sup. Ct. | 1850
It was not larceny by the common law to steal a chose in action, for the reason that it is only an evidence of money or other thing due from one person to another, and in itself possesses no intrinsic value. The crime could only be committed of personal goods, mere movables, having an intrinsic value.
By 2 R. S. 279, § 63, “ Every person who shall be convicted
The objection that it does not appear from the indictment that these banks had a legal existence, or that the bills were genuine, I think is unfounded in fact. The indictment certainly does alledge the existence of the banks, by stating that the notes were issued by them. The allegation in this respect is general, but is sufficient. If the notes had been issued by the Bank of Geneva, it would have been necessary, according to the rule contended for, to set forth the charter, and then to aver a compliance with all the prerequisites to entitle the bank to issue notes, &c. That, I believe, was never held necessary, even in an indictment for forgery, where there is more reason for such particularity of averment. As to the want of an averment of the genuineness of the bills, the indictment states that they were issuetj by the banks. That is clearly sufficient.
The defendant’s counsel supposes that the cases of The Commonwealth v. Boyer, (1 Binn. Rep. 201;) Spangler v. The Commonwealth,, (3 Id. 553,) and Stewart v. The Commonwealth, (4 Serg. & Rawle, 194,) are against sustaining the indictment in the present case. In the first of those cases the indictment was for robbery and larceny of “two ten dollar notes of the president, directors and company of the Bank of the United States,” See. and various other notes described in the same way, “ being altogether of the value of thirty-eight dollars,” &c. The indictment was founded on an act of the legislature of Pennsylvania, making robbery or larceny of “ obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money” &c. punishable “ in the same manner as robbery or larceny of any goods or chattels.” After the defendant
In the case of Spangler v. The Commonwealth, the prisoner was indicted under the same statute of Pennsylvania, for stealing “ three several promissory notes for the payment of money, viz. three bank notes, each for the payment of five dollars, of the value each of five dollars,” &c. After conviction the judgment was arrested, upon the ground that by a subsequent statute, entitled “ An act to amend the penal laws,” passed January
In the case of Stewart v. The Commonwealth, the prisoner was indicted for burglary and larceny. The indictment charged that the prisoner the dwelling house of one Abraham Miller, &c. feloniously and burglariously did break and enter, and sundry promissory notes for the payment of money of the value of eighty dollars, of the goods and chattels of the said Abraham Miller, in the said dwelling house then and there being found, then and there feloniously and burglariously did steal, take and carry away. The prisoner was convicted, and upon error brought the judgment was reversed, upon the ground that the notes should have been more particularly described, and that it should have been set forth that the money was unpaid on them. The description of the property stolen was “ sundry promissory notes for the payment of money.” This case is the strongest authority I have met with in favor of the motion to arrest the judgment in the present case ; and yet it is plainly distinguishable from it. The number of the notes is no.t mentioned, nor by whom made, In the case at bar both of these particulars are mentioned. The rule at common law was that the indictment should contain a description of the property stolen both in quantity and number, description, and value. In the case of Stewart, neither quantity, description or number is mentioned. The indictment in the case at bar contains all these particulars. As to the remark that the indictment should set. forth that the money due on the notes was unpaid, I have only to say, that as the notes charged to have been stolen in that case do not appear to have been banknotes, and-as the statute of Pennsylvania of April 5, 1790, under which the indictment was found, only provides that robbery or larceny of promissory notes for the payment of money should be punished in the same manner
Several other cases were cited on the argument, by the defendant’s counsel, which it is unnecessary to examine particularly. Most, if not all of them, relate to questions of proof upon the trial, and do not elucidate those arising upon this motion in arrest of judgment.
We are satisfied that the indictment in this case is sufficient, and that the motion in arrest of judgment should be denied.