57 Barb. 46 | N.Y. Sup. Ct. | 1870
The motion made by the defendant’s counsel, when the people rested, and renewed at the close of the testimony in the case, was properly denied, in each ease. The substantial 'ground of the ob
There can be no doubt, I apprehend, that where a person has been guilty of a burglary and a larceny at the same time, he may be indicted for either the burglary or the larceny, separately, and convicted of the offense charged. Whether, after having been indicted for one of such offenses only, and convicted upon that one, he could after-wards be indicted separately and convicted for the other, is quite another and different question, and one which could not legitimately arise until the second indictment. It is laid down, in some of the older authorities, that an acquittal, upon an indictment for a burglary, with intent to commit a larceny, but which does not charge the commission of a larceny, is no bar to a subsequent indictment for the larceny. The reason given is, that the defendant could not have been convicted of the larceny on the first indictment, inasmuch as it was not charged. (Arch. Cr. Pl. 88. 2 Hale, 245. Rex v. Vandercourt, 2 Leach, 716.) But if the first indictment, for the burglary, charges the commission of the larceny also, so that the defendant may be convicted of the larceny if the proof of the burglary is insufficient to establish that offense, but proves the other, the reason of the rule fails, and the rule with it. The acquittal would then be a bar to the subsequent indictment for the larceny.
But whatever may be the rule in regard to acquittals, there cannot, I apprehend, be two convictions, for separate acts, constituting the same felony. If it is all the same
It was upon this principle that it was held in the case of The State v. Lewis, (2 Hawks, 98,) that a conviction for larceny was a bar to a subsequent indictment for the robbery which accompanied the larceny, and which was part of the same felony.
I am of the opinion, therefore, that the conviction for the larceny which was committed by means of the burglary, will constitute a bar to any subsequent trial and conviction of the defendant for the offense of burglary. It was all one transaction, and constituted but one felony, though a compound one.
There is no ground, however, in this case, for any presumption that the defendant will ever be called upon to answer any indictment for burglary. He was a witness in his own behalf, upon the trial, and testified to his entire innocence both of the larceny and burglary. And had he been indicted for the burglary and larceny, it is by no means certain in view of the character of the people’s principal witness, and of all the testimony together, that he would have been convicted of the burglary. He may be guilty of that, and may not be. But whether he was or was not, he was not entitled to be discharged, because it appeared on the trial that he probably was guilty of the higher offense also. There was no variance between the indict
The exception to that part of the charge, set out in the case, is not well taken. It is a mere general exception, without specifying any grounds of error. Such an exception is of no avail. There was no request to charge otherwise in any particular.
The conviction must therefore be affirmed, and the proceedings remitted to the court of sessions of Wayne county for judgment and sentence upon the conviction.
Johnson, J. C. Smith and Dwight, Justices.]