| Superior Court of Buffalo | Dec 15, 1856
By the Court,
At the close of the trial, I refused to charge, as matter of law, upon the evidence, that the indictment should have charged the prisoner as an accessory before the fact, to a larceny of the mare by the witness, Close. I also refused to decide that “ the question as to whether Close was a guilty party, ought not to be submitted to the jury;” or, in other words, was a question for the court. I refused to- decide “ that, inasmuch as the evidence implicated Close, the prisoner ought not to be put upon his defence, in the absence of affirmative proof on the part of the People, of the innocence of Close;” or, in other words, I refused to'adjudge him guilty as a principal. I did, “ among other things, charge the jury that they were to determine, upon the evidence, whether or not the witness, Close, was an innocent agent of the prisoner in taking the horse; that if they so found, and if they further found a felonious intent upon the part of the prisoner,” in the taking by Close, “ he could be convicted on the indictment; but if they found that Close had a knowledge of the prisoner’s said felonious intent, then their verdict should be not guilty.” In this I can see no error prejudicial to the prisoner.
The argument of his able and zealous counsel assumes that Close was, upon the evidence and by some rule of law, presumptively guilty. No such presumption arises from the fact that Close presented a genuine order of La Duke, the owner of the mare, for its delivery, and received it on the order, and took it to Westcott’s stable. If the order had been forged, the case would have been different. Under the finding of the jury
La Duke’s testimony tended to implicate both Close and Westcott as parties to the fraud. Close’s testimony tended to exonerate himself. Westcott’s tended to exonerate both himself and Close; and the conduct of both Westcott and Close, after the procurement of the mare by the latter, is consistent with honesty of intention. They kept her out of the prisoner’s possession during the night, and Westcott restored her to La Duke in the morning.
The second point of the prisoner’s counsel assumes either that Close is to be presumed guilty of the fraud, simply because he drew papers intrinsically honest, but the contents of which were fraudulently misrepresented to La Duke—a proposition too monstrous to require refutation; or simply because he presented the genuine order—a proposition which is equally monstrous. These circumstances, singly or conjointly, would have been utterly insufficient to carry the question of Close’s guilt to the jury. To make them available in evidence against him, knowledge on his part of the proposed fraudulent use of the papers, and of the fraud itself, was necessary to be proven, and this could only be proven by his presence at the time of the fraudulent representations as to the contents of the papers, or by other circumstances. Surely the counsel would not require “ direct, positive, affirmative proof ” of innocence from a prisoner, whose guilt is not presumptively proven by a fact established by evidence in its nature indisputable, but where there is nothing but circumstantial evidence, given by witnesses whose accuracy in details as well as whose general credibility can be determined only by a jury.
The fourth point of the counsel for the prisoner confounds “evidence” with “witness.” It is not true that the same evidence which proves the guilt or innocence of Close, establishes •the guilt or innocence .of the prisoner. The testimony of the
A new trial should be denied.
Ordered accordingly.