
    Supreme Court—General Term—Fifth Department.
    
      July, 1885.
    PEOPLE v. KELLY.
    Larceny.
    Admissions of defendant that after assigning for value his wages to one 0. he had received and spent them himself, are insufficient, without further evidence, to convict him of larceny.
    The written assignment of the wages does not furnish the proof in addition to the confession, required by statute (Co. Orim. Proc. § 895), to procure a conviction.
    The defendant, who was a minor, had a right to disaffirm his contract on the ground of infancy, and such disaffirmance is not in itself a criminal offense.
    
      Semble, that a minor who at the time of assigning his wages and procuring money thereon, does so with the criminal intent to cheat and defraud the assignee, and with the intention existing at that time of subsequently disaffirming the assignment on the ground of infancy, and collecting the assigned wages, is guilty of larceny.
    
      Appeal by John Kelly, defendant, from a judgment of the Court of Sessions, of Steuben county, Hon. Hablo Hakes presiding, of October 6, 1884, convicting him of larceny, and from an order denying motion in arrest of judgment.
    The facts appear in the opinion.
    
      Beard (& Oriffen, for defendant, appellant.
    
      I. W. Wear, district attorney, for the people, respondents.
   Haight, J.

The defendant was a minor of the age of nineteen years. On the twenty-seventh day of June, 1884, he executed and delivered to Fred. S. Conderman, an assignment in writing of all right, title, and interest, and claim, to the wages or salary that might be due him from the Hew York, Lake Erie, and Western Railroad Company, for services as employee of the company during the month of June, 1884, for which assignment Conderman paid him the sum of $44.30. Upon the trial, Conderman testified that he had a conversation with the defendant the latter part of July, and defendant told him that he drew his money in Buffalo, and spent it. James Trenehard also testified upon the trial, on behalf of the people, that he had a talk with the defendant after he was arrested and in the lockup, in which the defendant said to him, that he got in with a lot of boys, got on a drunk; went to Buffalo .and spent the money; he said he drew the money himself. The witness also testified that he had another conversation with him in the jail, at Bath, and that he gave as a reason why he did not pay it over to Conderman, that he spent it all, and was sorry he did. This is substantially all the evidence given on behalf of the people.. At the close of the evidence on the part of the people, the defendant moved that he be discharged, upon the ground that there is no proof that the defendant had received the money, or had disposed of any money, except by his own confession. This motion was denied, and the defendant excepted.

Section 395 of the Code of Criminal Procedure provides that: “ A confession of a defendant, whether in the course of judicial proceedings, or to a private person, can be given in evidence against him, unless made under the influence of fear, produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor ; but is not sufficient to warrant his conviction without additional proof that the crime charged has been committed.”

We here have an express statutory enactment to the effect that the confession of the defendant shall not be sufficient to warrant his conviction without additional proof that the crime charged has been committed. In the case under consideration, we have no such additional proof. . It is contended, on the part of the people, that the written assignment introduced in evidence furnishes such additional proof. But this, we do not think, is the case ; the thing that the written assignment tended to prove was that Conderman had become the owner of the defendant’s wages for the month of June. It did not tend to prove that the defendant had performed any services for the railroad company, or that the railroad company owed him anything for services performed. It did not tend to prove that the defendant subsequently collected from the railroad company the money due him for services, or that he converted the same to his own use. The paper, therefore, did not prove that the crime of larceny had been committed, and consequently did not furnish the additional proof required by the statute. Suppose that B. should be indicted for .stealing a horse owned by A. Upon the trial, A. should have been sworn as a witness, and testified that he was the owner of a horse, describing it, but did not testify that the horse had been stolen or taken from him without his consent. The confession of B. that he had stolen the horse would not be sufficient to authorize his conviction, for the reason that there was no additional proof' that the crime had been committed; the evidence of A. only related to his ownership of the animal, and did not tend to show that it had been stolen. Take a person charged with the crime of murder. In order to warrant a conviction, proof must be given to show that a human person in being had been killed ; evidence that the person alleged to have been killed was known to the witness, that he was alive and well on the day before it was alleged he was killed, -would not be sufficient; whilst it would tend to establish that there was such a person in being, it would not tend to establish an unlawful killing. Consequently, other evidence tending to establish the corpus delicti would be necessary in order to warrant a conviction upon the confession of the person charged. In the case of People v. Humphrey, 7 Johns. 314, the prisoner was charged with the crime of bigamy ; it was held that the marriage must be proved; that a confession of the prisoner was not sufficient.

Again, a serious question is presented, growing out of the fact that the defendant in this case was a minor. The assignment of his wages was voidable, and he had the right at any time to disaffirm the contract, and in disaffirming the contract, he would be guilty of no crime. Chapin v. Shafer, 49 N. Y. 407 ; Green v. Green, 69 N. Y. 553; Walsh v. Powers, 43 N. Y. 23.

If, at the time he made the assignment and procured the money thereon from Conderman, he did it with the criminal intent to defraud Conderman, and with the intention at that time of subsequently disaffirming the contract and collecting the money from the railroad company, he doubtless would be guilty of a crime ; but he is not indicted for having procured the §44.30 from Conderman, by reason of the assignment with the intent to defraud him of his property, etc., but is indicted for having in his possession, as the servant or agent of Conderman, the sum of $50, which he converted to his own use with intent to defraud, etc.

We are of the opinion that the judgment and conviction should be reversed, and a new trial ordered, and for that purpose the proceedings should be remitted to the Court of Sessions of Steuben county.

So ordered.

Smith, P. J., Barker and Bradley, JJ., concur.  