Thomas v. People

19 Wend. 480 | N.Y. Sup. Ct. | 1838

By the Court,

Bronson, J.

The conviction was wrong on the merits, but as there was a trial by jury, it cannot be reversed upon that ground. 2 R. S. 718, § 44. There are however, several errors in law upon which it must be reversed. The statute, § 26, makes a party liable who shall remove his property out of any county with intent to prevent the same being levied upon by execution. The complaint against the defendant contains no charge within this clause of the section. Proceedings may also be had under this statute against the person who shall secrete, assign, convey, or otherwise dispose of his property with intent to defraud any creditor, &c. If the design was to charge the defendant with secreting his property, the allegation should have been directly made; removing the property to places unknown, does not necessarily amount to the same thing. In „ , , , , 3 , . , , .. 6 . , truth, the only matter the complainant had to allege against the defendant was, not that he had secreted, but that he had removed his property out of the county, and that allegation he failed to make.

The value of the property removed should have been stated ; for if it exceeded fifty dollars, the special sessions had not jurisdiction. Powers v. The People, 4 Johns. R. 292. Here the value was not stated, and, from the evidence, there can be but little doubt that it exceeded fifty dollars.

The offence of which the defendant- was guilty, if any, was removing with his family and goods to the west. He offered to prove that he told several persons in Ithaca, that he was going away with his family as he did, which evidence was overruled by the court, unless he could prove that it was known to the complainant. This decision was clearly wrong.

Judgment reversed.