
    Supreme Court—Appellate Division—First Department.
    June, 1905.
    THE PEOPLE v. EDGAR E. DU VEAU.
    
    (105 App. Div. 381.)
    1. Attempt to Commit Robbery in the First Degree.
    It appeared that the defendant proposed to one N. to rob a man named L., and to divide the proceeds; that N. agreed; that N., however, reported the matter to the District Attorney’s office and thereafter followed the instructions of certain detectives employed in the District Attorney’s office; that the defendant, in the attempted commission of his design, prepared a bludgeon with which to assault the victim L.; that one of the detectives, M., was introduced to the defendant as a person who would assist in the proposed robbery; that it was agreed that M. should commit the assault and that N. was to rob the victim L., and turn over the proceeds to the defendant; that at the appointed time M. and N. and the defendant met at L.’s place of business; that the defendant told M. and N. to go upstairs and commit the robbery while the defendant himself waited below; that M. and 2ST. went upstairs, and that the defendant, while waiting at the door, was thereupon arrested. The victim, L., was upon the premises, but had no knowledge that an attempt was to be made to rob him. Held, that the defendant was properly convicted of an attempt to commit robbery in the first degree. '
    2. Trap—When Not a Defense.
    It was claimed that as the defendant’s supposed accomplices were acting under instructions from the District Attorney’s office, no crime could have been committed, and that the defendant could not have been guilty of an attempt. Held, however, that there was nothing to prevent the scheme from being carried out, except the fact (unknown to the defendant) that the public authorities had been apprised; that the defendant had proposed the robbery; that the victim, L., was not even warned of the attempt; and that the defendant’s acts were done with intent to commit the crime and tended, but failed, to effect its commission.
    
      Appeal by the defendant, Edgar E. Du Veau, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of New York, entered on the 30th day of November, 1903, convicting the defendant of an attempt to commit the crime of robbery in the first degree-, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment.
    Lewis Stuyvesant Chanler, for the appellant.
    Robert C. Taylor, for the respondent.
    
      
       See note on Traps and Attempts, infra, p. 294.
    
   Ingraham, J.:

The defendant was indicted for an attempt to commit robbery in the first degree. By sections 224 and 228 of the Penal Code that crime is defined to- be the unlawful taking of personal property from the person, or in the presence of another against his will, by means of force or violence, or fear of injury, by a person being armed with a dangerous weapon, or being aided by an accomplice actually present, or when the offender inflicts griev.ous bodily harm or injury upon the person from whose possession, or in whose presence, the property is taken. Section 34 of the Penal Code provides that an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” Section 29 of the Penal Code provides that “ a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.”

The learned counsel for the appellant relies upon but one exception taken upon the trial. That is a refusal to charge a request which the learned counsel himself pronounces unintelligible. He then calls attention to an objection to a question asked the defendant upon cross-examination; hut to the ruling upon that objection no- exception was taken. An exception would have been quite unavailing if it had been taken, as overruling such an objection to a question asked the defendant upon cross-examination was not error. The learned counsel for the defendant, however, earnestly insists that the evidence was not sufficient to justify a conviction, and that upon the whole evidence no- crime was actually committed, as all that was done was by the procurement of persons connected with the district attorney’s' office who are designated as “ county detectives.”

To determine this question a careful examination of the whole record was required, and I have carefully considered it all, with the result that I am quite satisfied that the story told by the witnesses for the People was substantially true and that the defendant’s explanation of the conceded facts is most improbable. It is quite true that much evidence was admitted which would probably have been excluded if objection had been made by the defendant. Just why it was not objected to is not apparent; but, it having been admitted without objection, I do not think we should be justified in reversing the judgment, unless it appeared that without that testimony there would have been a reasonable doubt of the defendant’s guilt; and the more I have studied this testimony the more I am satisfied that such a doubt does not exist.

It is quite unnecessary to make a detailed statement of the facts appearing in this record and which have led me to this conclusion, and I shall not attempt it. The learned counsel for the appellant, however, insists that the defendant is not guilty of any crime, because his accomplices in the perpetration of the robbery were acting under instructions, from the district attorney’s office, and that as under the conditions- that existed no crime could have been committed, the defendant could not have been guilty of an attempt to commit a crime. ■To consider this question, a brief statement- of the story told by. the witnesses for the prosecution will suffice. The defendant was employed in a detective agency in the city of New York and some time prior to October, 1903, one Nelson had been in the habit of frequenting that office in the hope of obtaining a position there. Nelson was very poor and was extremely anxious to obtain some position, which was known to the defendant. Between the 21st and 23d of October, 1903, the defendant asked Nelson if he would take a chance, to which Nelson said that he would take a. chance at almost anything, and the defendant on several successive days asked him the same question. On the 28th day of October the defendant explained to Nelson what this chance was: He said: “My girl works down in 117 & 119 Mercer street, and she is up1 against a man they call Lewis; one of the bosses, and he wears a watch and chain, a diamond pin, a ring on his finger and he carries about forty or fifty dollars in money in hisi pocket on Monday night, which is pay night. . . . We can go up there; . . . I think you are the right man for to do this,” to which Nelson replied, “ All right.” The defendant also said that this would bring them about $300, which would be about $100 apiece—$100 for his girl, $100 for himself and $100 for Nelson. Nelson then told the defendant that he was willing to take a chance on that; that subsequently the girl came and Nelson was introduced to her. The defendant said to the girl: “ This is the man that is going to do that job for us; . . . how do you like him ? ” That the girl looked at Nelson and said, “ He is all right,” and that was' the end of the conversation. Nelson then went home, and after considering the proposition, the next morning went to the district attorney’s office and was turned over to the “ county detectives,” and afterwards followed their instructions. Subsequently the defendant told Nelson that Lewis waited in his shop until after his employees left and came out alone; that Lewis kept one or two floors in the upper part of a building in Mercer street; that Nelson was to go up and hide himself in the hall near the entrance to Lewis’ place of business, and as Lewis came out Nelson was to strike him a blow on the head, rob him of his jewelry and money and bring them to the defendant who' would subsequently divide them. The defendant subsequently purchased a piece of rubber hose and in it inserted a piece of lead which he gave to Nelson as a weapon with which to assault Lewis; that the defendant subsequently told Nelson that his girl had been discharged from the place and in consequence of that the attempt was to be postponed; that Nelson told the defendant that he knew a man who had been engaged in smne criminal enterprise and who could be employed for fifteen or twenty dollars, to assist them in this robbery, to which the defendant agreed, whereupon one of the employees of the district attorney’s office was introduced to the defendant as the man that had been ■spoken of, and it was agreed that he was to commit the assault, for which he was to receive fifteen dollars. Nelson was to rob Lewis after he was rendered unconscious, and to turn the proceeds of the robbery over to defendant. It was finally arranged that this was to' be accomplished on the evening of November fourth, and on that day Nelson and his confederate were instructed by the defendant to meet him at six o’clock in front of the premises 117 and 119 Mercer street. They met there. The defendant told Nelson and his confederate to go upstairs and commit the robbery while the defendant would wait below. Nelson and his confederate went upstairs to wait for Lewis, the defendant waiting in the immediate neighborhood, and while he was thus waiting he was arrested by a police officer and employees of the district attorney’s office. Lewis, who knew nothing about the transaction, was at the time upon the premises. He was called as a witness and testified that he wore the jewelry described by the defendant; that he was in the habit of paying his employees on Monday and was in the habit of having several hundred dollars in bills in his pocket; that it was his habit to wait until all of his employees left the premises, when he locked the doors and went home; that he had no knowledge of the attempt that was to* be made to rob him until after the arrest of the defendant, when some of the district attorney’s employees told him about it; and that he had never seen either the defendant or Nelson before, and the location of the halls and stairway was found to be as described by the defendant.

It is upon this evidence that the defendant was convicted of an attempt at robbery in the first degree. If this story is true—and the jury were justified in believing it—I think there is no doubt that the defendant was guilty of the crime charged. Lewis, who was to be robbed, was where he was expected to be at the time the attempt was to be made. He had upon his person the property of which the defendant expected to despoil him. The defendant had proposed to Nelson to rob him; had furnished Nelson with a weapon with which he was to be rendered unconscious while Nelson robbed him; had engaged with Nelson’s confederate to assist in the attempt, and the defendant was to receive from them the proceeds of the robbery. There was nothing to prevent the scheme from being carried out, and Lewis seriously, if not fatally, injured and then robbed, except the fact that unknown to the defendant the public authorities had been apprised of his purpose and were on hand to prevent the attempt. The first suggestion of the robbery came from the defendant. The authorities did not propose the commission of the crime. The person to be robbed had no part in the transaction. He was not even warned of the attempt that was to be made upon him. This is entirely different from a case where the owner of property, learning that an attempt is to be made to rob him, takes part in the act by aiding the robbers in their attempt. There certainly can be no doubt but that a crime would have been committed if Lewis had walked out of his premises, locked the door, and had then been assaulted with the weapon furnished by the defendant, and his money and' jewelry taken from his person while he was únconscious. If the defendant did an act with intent to commit that crime, and tending but failing to effect its commission, he was! guilty of an attempt to commit that crime within section 34 of the Penal Code.

In People v. Moran (123 N. Y. 254; s. c. 8 N. Y. Crim. 105) the defendant was indicted for an attempt to commit the crime of grand larceny in the second degree by attempting to steal, from the person of an unknown woman in the daytime, in the city and county of Hew York, certain goods, chattels and personal property of the value of ten dollars. The evidence showed that the defendant, accompanied by two associates, was passing through a crowd of people in a market in the city of Hew York, and was seen to thrust his hand into the pocket of a woman, and to withdraw it therefrom empty. The defendant was seen by a police officer and arrested, but the woman was lost in the crowd and not discovered;.and the only question was whether upon this evidence the defendant was guilty of an attempt to. commit the crime of grand larceny within section 34 of the Penal Code. It was held that the defendant was properly convicted. Chief Judge Huger, delivering the opinion of the court, there says: The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, co-existed. Whenever the ammo, furandi exists, followed by acts apparently affording a prospect of success, and tending to render the commission of the crime effectual, the accused brings himself within the letter and intent of the statute. To constitute the crime charged there must be a person from whom the property may be taken, an intent to take it against the will of the owner, and some act performed tending to accomplish it, and when these things concur the crime has, we think, been committed, whether property could in fact have been stolen or not. In such cases the accused hag done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design.”

The other question is, whether the defendant did an act with the intent to commit the crime and tending but failing to effect its. commission. He procured and gave to Kelson the weapon which was to be used, and this weapon was certainly a dangerous weapon, within section 228 of the Penal Code. The case of People v. Bush (4 Hill, 133) was an indictment for an attempt to commit arson. It was proved that the defendant requested one Kinney t'o set fire to Sheldon’s barn, offering him a reward; that afterwards, understanding and believing that Kinney would set fire to the barn, the defendant gave him a match for that purpose, not meaning to be present himself at the doing of the act. It appeared that Kinney never intended to commit the crime. The defendant was convicted, and, upon appeal, that conviction was affirmed. It was held that the course taken to commit the arson by the hand of Kinney was the same thing in legal effect as if Bush had intended to set the fire personally, and had taken steps preparatory to that end; that an attempt may be immediate, but it very commonly means a remote effort, or indirect measure taken with intent to effect an object; that the solicitation was followed by furnishing the instrument of mischief (see, also, McDermott v. People, 5 Park. Cr. Rep. 102; Mackesey v. People, 6 id. 116), and these cases have been cited with approval in People v. Moran (supra,). In People v. Gardner (144 N. Y. 124; s. c. 9 N. Y. Crim. 404) the defendant was indicted for an attempt to commit extortion from one Amos, who was a keeper of a house of prostitution. At the time Amos was acting under instructions of the police, trying to induce the defendant to receive money from her under such circumstances- as would render him guilty of a crime and enable the police to arrest and convict him. The court below held that as this woman paid the money voluntarily, and was not actuated by any fear, a criipe was not committed; that the fact the defendant’s threats did not inspire fear inducing any action on the part of the person from whom money was extorted rendered it impossible to- sustain an indictment and conviction for the lesser crime of an attempt at extortion. But that contention was overruled by the Court of Appeals, the court holding that the threat of the defendant was plainly an act •done with intent to commit the crime of extortion; that it tended but failed to effect its commission and, therefore, the act was an attempt to commit the crime within the statute; that this crime, as defined in the statute, depends upon the mind and intent of the wrongdoer and not on the effect or result upon the person sought to be coerced. These cases are cited with approval in the late case of People v. Mills (178 N. Y. 274; s. c. 18 N. Y. Crim. 269). In that case the court held, in speaking of the overt act made necessary by the statute for the commission of the crime, that an overt act is one done to carry out the intention and which must be such as would effect that result, unless prevented by some extraneous cause; and after citing People v. Bush, the court said: The furnishing of the matches was the overt act.' If the defendant did anything with intent to steal the papers, which in the ordinary course of events, unless interfered with, would have resulted in the theft thereof, it was an overt 'act.” Although there was a strong dissent in that case, it was based entirely upon the principle that where the owner of the property which is to be stolen attempts to induce another to steal it, that other cannot be held to be guilty of an. attempt to- do an act which was not a crime, a principle which has no application to this1 case. (See, also, People v. Conrad, 102 App. Div. 566, ante, p. 259.) The facts of this case bring it directly within these authorities. The defendant first suggested to Nelson the commission of this crime, which, if consummated, would have been clearly robbery in the first degree. He furnished Nelson and his accomplice with the weapon to carry it out; was present in the neighborhood to receive the results, and was thus directly engaged in an attempt to. commit the crime. We think, therefore, that the defendant was guilty. The jury believed the evidence of the prosecution, and, after a careful consideration of this testimony, I am satisfied that the finding was sustained by the evidence. Under those circumstances we should not be justified in reversing the judgment, because testimony was introduced by the district attorney to which the defendant made no objection, and which, if objected to, should have been excluded.

It follows that the judgment appealed from must be affirmed.

O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed.  