
    
      Supreme Court-General Term-first Department.
    
    
      January, 1886.
    PEOPLE v. CRUGER.
    Larceny—Charge—Reasonable Dohbt.
    A judge who has correctly charged on the question of reasonable doubt, is • not required to subdivide that portion of his charge into “reasonable doubts ” upon any particular branch of the case, or upon questions of veracity between witnesses.
    The reasonable doubt whicn entitles the defendant to an acquittal, is that which still exists upon the question of guilt after the jury have fully » and fairly considered the evidence presented on both sides, with all its surrounding circumstances, and find that they fail to produce satisfactory conclusions of the guiltiness of the accused.
    Defendant claimed on this appeal that, as the indictment charged a felonious talcing under subdivision 1 of section 528, and the evidence on the trial showed, at most, an unlawful conversion under subdivision 2 of that section, there was a fatal variance between the charge and the proof. Held, that such objection not having been taken on the trial, the defendant having been in no way misled or prejudiced by the alleged variance, cannot he raised for the first time upon appeal.
    The court was requested to charge that, if the owner of the diamond pin, for the larceny of which defendant was indicted, authorized defendant to obtain a loan upon it, and that, if the defendant did actually obtain that loan from one H., as authorized by the complainant, defendant was not guilty of larceny. Held, that a refusal to so charge was not error, ■ because the evidence showed that there were two distinct transactions in reference to the pin, between the complainant and defendant, and between defendant and H., in which loans were made by the latter to the former, and that the request might mislead the jury as to which loan it referred. And, also, that the request was erroneous in excluding the defendant’s intent at the time of making the loan.
    Appeal by Kortright Cruger, defendant, from a judgment-of the Court of Oyer and Terminer of New York county, Hon. Charles H. Yan Brunt, presiding, of June 1, convictmghim of grand larceny.
    The defendant was engaged in the business of buying and! selling jewelry, and of effecting loans upon personal property, in Maiden lane, in the city of New York; he carried little if any stock, but sold jewelry by advertising and catalogue. Having seen one of such advertisements, one James S. Porteous, being the owner of a diamond pin or brooch, called upon the defendant and left it with him to sell, got a receipt for it, but in a few days thereafter took it away again, delivering back the receipt.
    Thereafter, Porteous obtained a loan of one - hundred and fifty dollars upon the pin at Simpson’s, in Chatham street.
    Gfoing to see the defendant shortly after, he was told that he had better leave the pawn ticket with him, so that, should he find a customer, he could take him to Simpson’s and show him the pin. Porteous left the pawn-ticket, but in February, being ready to redeem, went to the defendant and asked him for it The latter told him he had taken it out, having been able to get the money at a less rate of interest. Porteous told him to get the pin, and gave him a check for one hundred and fifty-five dollars to pay his loan.
    Meanwhile the defendant had pledged the pin with one Zophar Hawldns for two hundred dollars, of which one hundred and fifty-three dollars was paid with the pawn-ticket to Simpson, and the balance retained by the defendant; the defendant, having received the check, paid Hawkins, recovered the pin, and restored it to Porteous upon the 25th of February, 1885.
    On March 10th, Porteous again went to Cruger in Maiden lane, and asked if he had any customer for the pin, and told him that, should any such apply, he might have it again for . sale; the defendant asked him the lowest he would take, suggesting the difficulties of a sale, and stating that a low price would attract customers; Porteous told him that if he could get a cash customer for it for three hundred dollars he would let it go, but he testified that he did not authorize Cruger to get ■a loan upon the pin.
    Without the knowledge of Porteous, on the 16th day of March, Cruger again applied to Hawkins for a loan, and on the 21st delivered the pin to Hawkins as security for a loan of two .hundred dollars, which he retained.
    
      On the 28th day of March, Porteons called on the defendant' to ascertain whether he had a customer, stating that he wanted to get some money to deposit in his bank, so that he could draw a check against it Cruger told him that nothing had been done. On April 1st, Porteous told him he wanted the pin back. On the 2d, 3d and 4th he called for it, Porteous telling him that he expected a man to buy it who had not yet made his appearance. Finally, on April 4th, Porteous said he must have it on the 6th. On the 6th he called again on the defendant, and told him he would leave it no longer. The defendant then told him he had given the pin to a man named Daniel Fanshawe, who had not turned up; that he had made an effort, and could not find him. He gave the complainant a slip of paper, upon which he wrote, “ Daniel Fanshawe, 115 Broadway.”
    Porteous sought for Fanshawe at the address given, and, not finding him, returned to Cruger, from whom he derived no satisfaction. Then he consulted his lawyer, Mr. Ingalls, who, upon the 7th day of April, called on Cruger in company with Porteous. To him Cruger admitted that he had not the pin or the money, having put the former in the hands of Daniel Fanshawe aforesaid, but, upon Mr. Ingalls’ demand, gave Porteous a receipt for the pin.
    Daniel Fanshawe, of Brooklyn, who did not know the defendant, stated that he had received a letter from the defendant, to the effect that, if he did not call and see him, he (the defendant) would get into serious trouble.
    The defendant testified that when, on or about March 10th( Porteous talked with him about the pin, he authorized him to-get a loan of three hundred dollars upon it; that Porteous subsequently brought the pin to him; that he obtained a loan of two hundred dollars from Hawkins, and a promise of one hundred dollars more, and that he paid the two hundred dollars to Porteous, and explained that he had told Mr. Ingalls that he-had given the pin to Fanshawe by agreement between Porteons and himself, Porteous representing that Ingalls was pushing him, and the defendant in this way endeavoring to assist Porteous by putting Ingalls off.
    In rebuttal, Porteous denied that he had made any such-agreement, and Mr. Ingalls testified that when, on April 7th and 8th, he called upon the defendant, he said nothing to him about having paid Porteous two hundred dollars.
    The court instructed the jury that, “ If you find, from the evidence in this case, that Cruger has disposed of this pin for the purpose of appropriating it to his own use, either by sale or by pledge, then he is, under the definition of this statute, guilty of larceny.”
    
      Morris A. Tyng, for defendant, appellant.—No evidence whatsoever was given to show that the defendant committed the act stated in the indictment as constituting the crime of which he is accused.
    I. The indictment must contain “ a plain and concise statement of the act constituting the crime.” Code Crim. Proc., § 275. The indictment in this case states that the act constituting the crime of which the defendant was accused, is that “ the said Kortright Cruger, on the 10th day of March, 1885, with force and arms, one lace pin, &c., of the goods, chattels and personal property of one James S. Porteous, then and there did feloniously steal, take and carry away.” And the defendant was found guilty of this act “ as by the indictment is alleged against him.” If these words in the indictment mean anything, the act constituting the crime of grand larceny, of which the defendant was accused, and of which he was found guilty, is that of “ taking from the possession of the true owner ’* the property mentioned in the indictment, which is made larceny by subdivision 1 of section 528 of the Penal Code.
    IL No evidence was given or offered to prove the act stated in the indictment as constituting the crime of which the defendant was accused, that he took this pin from the possession of the true owner, James S. Porteous. On the contrary, it was conceded that the pin was lawfully in the possession of the defendant; and the only claim that was made was that if the defendant had been guilty of the crime of grand larceny, the act constituting that crime was, that having in his possession the property in question he appropriated the same to his own use, which is made larceny by subdivision 2 of section 528 of the Penal Code.
    
      III. The defendant then was charged, and by the record has been found guilty of committing the act, while the only evidence offered was to show that he was guilty, because he had committed another and an entire different act. He is charged in the indictment with taking the pin, and was found guilty, “ as by the indictment is alleged,” and the only proof is that he committed another and entirely different crime, viz.: that having the pin in his possession as agent, &c., he appreciated it to his own use. These are two separate and distinct crimes. Under the 1st subdivision of section 528, the act constituting the crime consists in the unlawful taking, and it makes no difference whether the defendant has appropriated it to his own use or not; while in the crime for which the defendant was actually tried, it is the fact, that the defendant having the article lawfully in his possession appropriates it to his own use, that com stitutes the crime. Penal Code, § 528. Compare subdivisions 1 and 2.
    IV. This then is a material and fatal variance between the indictment and the proof It cannot be urged that because the Legislature in the Penal Code has, for the sake of convenience, brought together in one section and classed under one head many different acts which were made criminal, under different names by previous statutes, that they intended by that to abolish all distinction between these different acts, so that provided the indictment charged the crime as grand larceny, and stated any one of the acts or omissions, which, by law, render a man guilty of that crime, so that the indictment would not be bad on demurrer, on the ground that the facts stated do not constitute a crime, the prosecution on the trial might prove any other act or omission which by law constitutes the same crime, and by this evidence obtain and hold a verdict and judgment “ as by the indictment is alleged.” Such a principle would allow, not merely as in this case, that a defendant accused of “taking the property from the possession of the true owner,” subdivision 1 of section 528, could be found guilty, “ as by the indictment is alleged,” because there was evidence given to show, under subdivision 2, that the defendant “ having the property in his possession as agent, &c., appropriated it to his own use,” but, also, if there was evidence showing that he had committed any one of the acts which by section 529—or the other sections of chapter 4 of title 15 of the Penal Code—constitute the crime of larceny. And to carry the same principle of construction still further, that any defendant charged in the indictment with any one of the acts, which by section 511 constitute the crime of forgery in the second degree, conld be found guilty “ as by the indictment is alleged,” on evidence tending to show that he had committed some one of the other acts which, according to the same section, constitutes the same crime. Such a principle of construction is an absurdity, and entirely nullifies section 275 of the Code of Criminal Procedure, which provides that the indictment must contain “ a plain and concise statement of the act constituting the crime.”
    V. “"Variances are material because they may expose a prisoner to the danger of being again put in jeopardy for the same offense.” Hams v. People, 64 N.Y. 148. Another indictment could be found against the defendant stating the act constituting the crime to be, that “ he having in his possession as agent, &c.,” the property referred to, “ appropriated the same to his own use.” And the same evidence as was given on this trial could be offered in support of such an indictment If the defendant should attempt to plead to this indictment, the present indictment and conviction, the answer would be, and it would be a complete answer to the plea, that in the one case the act constituting the crime is stated to be the “ taking from the possession of the true owner the property,” while in the other an entirely different act and crime were charged.
    
      Randolph B. - Martine, district attorney (Be Lancey NicoTl,assistant), for the people, respondent
   Davis, P. J.

The indictment in this case charges that the appellant, at the time and place therein named, feloniously “did steal, take and carry away one lace pin of the value of eight hundred dollars, and fifty-two diamonds of the value of twenty dollars each of the property of James Proteous,” without stating the particular facts proved on the trial which were claimed to constitute larceny within the definition of that crime, as given by subdivision 2 of section 528 of the Penal Code. Evidence was given on the part of the people on the trial tending to show that the appellant being lawfully in possession of the pin (of which the diamonds were constituent parts) as agent of the owner, feloniously appropriated the same to his own use, and the question is now made that inasmuch as the indictment charges only a felonious taking under subdivision 1 of section 528, and the evidence showed no such taking, but at most an unlawful conversion under subdivision 2 of the same section; there is a fatal variance between the charge and the proof.

But no such question was raised or made at any stage during the trial; nor does it in anywise appear that the appellant was misled or otherwise injured in his defense by the failure to set forth the facts in the indictment showing that the larceny charged arose upon such a criminal transaction as is declared larceny by subdivision 2 of the section. It is too late, therefore, we think, to raise the question now sought to be urged. The appellant is in no danger of a further indictment and conviction for the same offense to which the present trial and conviction would not be a bar, because he will always be at liberty under the plea of autre fois convict to show that he was convicted under this indictment for the same offense that may be specifically charged in another.

We are not called upon, therefore, to determine whether, under the provision of the Code which changes certain other crimes as they were specified and denominated by former statutes, into the crime of larceny, the people must set out the facts in an indictment as formerly required, or may allege merely a felonious taking which would constitute larceny at common law or under the Revised Statutes, and then prove on the trial the other facts now declared to constitute larceny by the Penal Code.

A careful study of the evidence in this case shows that there was quite sufficient proof, if the jury accepted as true the people’s version of the same, to justify the conviction of the defendant; and we are able to see nothing in the charge of the court as given and set forth in the case, of which complaint can justly be made. It was clear and impartial, and presented fully to the jury the real questions upon which the guilt or innocence of the accused depends. But some exceptions were taken to refusals to charge which require consideration. The court was requested to charge as follows:

“ The indictment being for the larceny of a certain pin, if the jury believe that the complainant, being the owner of the pin, authorized the defendant to obtain a loan upon it, and the defendant did actually obtain that loan from Mr. Hawkins, the witness who has testified, as authorized by the complainant, they cannot convict the defendant under this indictment of the larceny of the pin.”

The court refused so to charge, and the defendant excepted. At first blush it would seem that this request ought to have been charged; but a critical examination of the case will show that it might have been misleading to the jury if charged in the language of the request

There were two distinct transactions between the complainant and the defendant, and two between the defendant and Mr. Hawkins, in which loans were made by the latter to the former. The first of these was closed up by the repayment of the loan to Mr. ..Hawkins, and the return of the pin to the complainant by the defendant Afterwards, and in March following, the pin was put into the hands of the defendant again by the complainant, as he says for the purpose of a sale at a miniumrn price of three hundred dollars, and, as defendant says, for the purpose of a sale or loan; and it was upon what occurred after this return of the pin that the charge of larceny was predicated. Both of these transactions were spread out in evidence before the jury; each of the parties giving his version of the sama A charge in the precise language requested might have misled the jury, without careful explanation, to suppose that if either loan by Hawkins was sanctioned by the complainant, it would entitle defendant to an acquittal, while it is clear that a finding by the jury in that way, in respect of the first loan, would not necessarily have entitled him to such a verdict The appellant was not, therefore, entitled to the charge in the form and language requested.

Besides, the request eliminated the element of intention on the part of the defendant; for if the complainant did authorize, in general terms, a loan to be made upon the pin for his own benefit, that fact would not have authorized a loan for the benefit of the defendant himself to some unknown party whose name was concealed, as well as the fact that any loan had been made, by false representations as to the whereabouts of the pin, and by representing it to be in the possession of a fictitious person for the purposes of a sale, while, in fact, the defendant had fraudulently converted to his own use the proceeds of a loan upon it.

We are not able to see that the declension to charge the proposition requested was at all injurious to the defendant, nor that he had a strict right to demand it, and we are of opinion that it was not errar to refuse it.

It was no error to refuse to charge in the precise language of the request touching “reasonable doubt.” The court charged quite fully on that subject, and gave to the defendant the full benefit of the rule, and the judge was under no obligation to subdivide that portion of his charge into “ reasonable doubts ” upon this or that branch of the case, or upon questions of veracity between witnesses.

The true rule in respect of “reasonable doubt,” relates to the effect which the whole evidence of a case as presented on both sides, with all its surrounding circumstances, produces upon the minds of a jury, and it entitles the defendant to the benefit of a reasonable doubt which still exists upon the question of guilt, after the jury have fully and fairly considered such evidence and circumstances, and find that they fail to produce satisfactory conclusions of the guiltiness of the accused.

The motion for a new trial was properly disposed of by the court below, and we think the conviction and judgment must be affirmed.

Bradley and Childs, JJ., concur. 
      
       Following Walker v. People, 1 N. Y. Crim. Rep. 22; People n. Reavey, supra, p. 1.
     