
    The People of the State of New York, Respondent, v. Edward Kerns, Appellant. Same, Respondent, v. Michael Slattery, Appellant.
    
      Criminal law — an indictment should charge but a single crime — the remedy is by demurrer — technical defects disregarded—joinder of felonies is not a ground for a reversal where the sentence is single and is appropriate to either count — Penal Code, §§ 534, 550— Code of Criminal Procedure, §§ 278, 323, 331, 542 — 2 5. 8. 728, § 52.
    The practice existing in criminal cases, prior to our present system, which per- ' mitted the joinder of a count for larceny with a count for receiving stolen property, knowing it to be stolen, is not authorized by the Code of Criminal Procedure, under the provisions of which an indictment must charge but one crime.
    If, however, the objection that more than one crime is charged in the indictment is not taken by demurrer, it is waived.
    It is the purpose and spirit of our present system of criminal procedure to disregard technical errors and defects, and the court should not now reverse a conviction unless the substantial rights of the defendant have been infringed.
    An indictment contained a count for grand larceny in the second degree, and another for feloniously receiving the same property which the defendant was charged with stealing in the first count of the indictment, knowing it to be stolen.
    No evidence was given in support of the second count, and when the People rested the counsel for the defendant moved that, so far as that count was concerned, his client be discharged upon the ground that there was no evidence tending to show that he had received stolen property. This motion was denied, and the court in its charge to the jury did not-in terms eliminate the question of the second count from the consideration of the jury, but the whole effect of the charge, in reviewing the evidence, was applicable to the first count alone, and there was no suggestion in the charge, specifically, that the defendant could be convicted upon the second count. The jury rendered a verdict of “ guilty as charged in the indictment,” and the court sentenced the defendant to imprisonment in a penitentiary for the term of three years. The Penal Code imposes as a punishment for grand larceny, imprisonment for a term not exceeding five years, while the act of feloniously receiving stolen property may be punished by an imprisonment not exceeding five years, or by a fine, or by both fine and imprisonment.
    Held, that as the sentence was single, and was appropriate to either of the counts upon which the conviction was had, the defendant was not prejudiced by the proceedings had upon the trial.
    Appeal by the defendant in each of the above-entitled actions from a judgment of conviction of the Court of Sessions of the county of Monroe, rendered on the 13th day of March, 1895, convicting him of the crime of grand larceny in the second degree, and of feloniously receiving stolen property, and also from an order entered in the office of the clerk of the county of Monroe on the 13th day of March, 1895, denying his motion for a new trial made upon the minutes.
    The appeals in these'cases are from two separate judgments of the Court of Sessions of Monroe county convicting the defendants, and from orders refusing a new trial in each case. They were jointly indicted and demanded separate trials. The indictment upon which they were respectively tied contained two counts, one for grand larceny in' the second degree and the other for feloniously receiving the same property which they were charged with stealing in the first count of the indictment, knowing it to be stolen. The first count charged that, on the 11th day of July, 1894, the defendants in the indictment took from the person of one Horace Jeffords the sum of twelve dollars. On the 6th of March, 1895, the defendants were arraigned upon the indictment in' the Court of Sessions of Monroe county, and on the same day the indictment was moved for trial at that court before a jury, and in each case the jury returned a verdict of guilty.
    Each defendant subsequently made a motion for a new trial, which the court denied, and on the 13th day of- March, 1895, the defendant Kerns was sentenced by the court to be confined in the Monroe county penitentiary for the term of three years. The defendant Slattery.was sentenced to imprisonment in the Auburn State prison for five years. The testimony given by the complainant (Jeffords) was substantially as follows: That on the 11th day of July, 1894, he met the defendant Michael Slattery in a saloon on Stone street, in the city of Rochester; Slattery said he knew where Jeffords could make a trade-for his pony and get five dollars, and Jeffords said he would give him half ; then the parties got into a wagon; Slattery drove the horse; they went to the southwestern part of the city; turned into a vacant lot; Jeffords asked Slattery what he was going to do there; Slattery reached over and took him by the coat and said : “ All I want of you" is your money.” And Jeffords continues : “ I told him to let go, and he hung to my left arm, and the defendant (Kerns) grabbed me by the right arm; the first that I saw of Kerns was when he grabbed me by the right arm; * * * they dragged me perhaps a half a rod and kept putting their hand in my pocket and pulled out my pocket-book, and Slattery said, ‘ If you holler or make any noise, we will kick your brains out.’ They threw me down and when I got up they were not a rod from me, and Slattery said, ‘ We have got quite a bundle. * * * ’ I had about twelve or fifteen dollars.”
    Each defendant was sworn in his own behalf and denied the transaction in the vacant lot, and gave some evidence tending to show that he was not at the place where the robbery occurred. There was not a particle of evidence in the case (and the record before us assumes to contain all of the evidence given on both trials) that either of these defendants received any money or thing knowing it to be stolen, and it appears conclusively that the defendants were either guilty of the transaction detailed in Jeffords’ evidence above given or not guilty at all.
    Upon the trial of Slattery there was no motion to discharge the defendant as to the second count in the indictment nor any request to the court to charge the jury that he could not be convicted upon that count, and the attention of the trial court was in no manner called to any such matter, and the learned trial judge charged the jury, in substance, that if they convicted the defendant Slattery they must find him guilty upon the first, count of the indictment.
    In the case of Kerns, however, when the People rested, the counsel for the defendant moved that, so far as the second count in the indictment was concerned, the defendant be discharged upon the ground that there was no evidence tending to show that he had received stolen property. This motion was denied by the court and the defendant excepted. The court in its charge to the jury in that case did not eliminate the question of the second count from the consideration of the jury in terms, but the whole effect of the charge in reviewing the evidence was applicable to the first count alone, and there was no suggestion in the charge, specifically, that Kerns could be convicted upon the second count, that is, of receiving stolen property, but the jury came into court and rendered a verdict of “ guilty as charged in the indictment.” The verdict in the case of Slattery was a general verdict of guilty.
    The court in sentencing Slattery stated that he sentenced the defendant upon the first count of the indictment.
    
      H. B. Hallock, for the appellants.
    
      S. J. Warren, Assistant District Attorney, for the respondent.
   Ward, J.:

These appeals were argued together and will be considered together. The case of the appellant Slattery discloses no error. The serious question which arises in the Kerns case was in no manner presented to the trial courts nor does any exception taken by that appellant bring any erroneous ruling before us.

The practice in criminal cases prior to our present system, under the Code of Criminal Procedure, permitted the joinder in an indictment of a count for larceny with a count for receiving stolen property, knowing it to be stolen. (People v. Baker, 3 Hill, 159; Hawker v. The People, 75 N. Y. 490; People v. Bruno, 6 Park. Cr. Rep. 664.) Hnder our present system the indictment must charge but one crime. (§ 278, Code Crim. Proc.) Grand larceny and the crime of receiving stolen goods, knowing them to have been stolen, are separate, distinct and independent offenses, requiring different kinds of proof. (People v. Brien, 53 Hun, 496.) If moré than one crime is charged in the indictment the defendant may demur to the indictment for that reason. (Code Crim. Proc. §§ 323, 331.) If the objection is not taken by demurrer it is waived. (Id. §§ 323, 331; People v. McCarthy, 110 N. Y. 309; People v. Upton, 38 Hun, 107.)

Upon the trial, however, if there is no evidence to support one or more counts in the indictment, the defendant may raise that question by a motion to discharge the defendant from the charge contained in such count, or move the court that the jury be charged to render a verdict of not guilty thereon. The refusal of the court in either case, if excepted to, may be reviewed upon appeal.

The exception of the defendant Kerns, taken at the close of the People’s evidence, and above referred to, presents a serious question for our consideration.

Grand larceny in the second degree is punishable, pursuant to section 534 of the Penal Code, by imprisonment for a term not exceeding five years. By section 550 of the same Code “ a person, who buys or receives any stolen property, or any property which has been wrongfully appropriated in such a manner as to constitute larceny, * * * knowing the same to have been stolen, * * * is punishable, by imprisonment in a State prison for not more than five years, or in a county jail for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fane and imprisonment.” Therefore, the crime of receiving stolen property may, under the Penal Code, be punishable in a different manner from that of larceny in the second degree, and with a greater punishment. While the appeal is from the judgment and the order denying the new trial, the object really sought by the appeal is to relieve the appellant from the consequences of the conviction and the sentence imposed thereupon. Had the motion of the defendant Kerns been granted, and he had still been convicted upon the first count of the indictment, he was liable to be imprisoned for a term not exceeding five years. While it is not stated in the record that he was convicted upon the first count of the indictment and not upon the second, we are able to say from an examination of the record, Avhich we have a right to refer to, that as there was not a scintilla of evidence pointing to the guilt of the defendant under the second count of the indictment, and as there was evidence which, if it were believed by the jury, pointed to the- guilt of this defendant under the first count of the indictment, indeed pointing to the higher crime of robbery, he must have been convicted under the first count of the indictment, and as only a single sentence was imposed, such as comes within the scope of a conviction upon the first count, we are unable to see how the defendant Kerns has been prejudiced by the failure of the trial court to grant this motion to which we have referred, and in terms eliminate the charge under the second count of the indictment from the consideration of the jury.

The purpose and spirit of our new system of criminal procedure seems to be that the court at every stage of criminal trials and upon appeals must disregard technical errors and defects, and much of the strictness of the old practice lias been distinctly discountenanced, and the appellate court's are directed by section 542 of the Code of Criminal Procedure that they must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” This statute goes beyond mere technical errors and defects such as were cured by the Statute-of Jeofails (2 R. S. 728, § 52.) It commands the court not to reverse a conviction unless the substantial rights of the defendant have been infringed. In People v. Budd (117 N. Y. 1, 5, 6) we have an authority for the view here taken. The defendant was indicted under chapter 581 of the Laws of 1888, fixing the maximum charge for elevating grain, etc., and making violations of the act misdemeanors. The indictment contained two counts; the first charged the violation of the provisions of this act in exacting a greater amount than the statute permitted for elevating the grain, and the other count was for exacting more than the actual cost of shoveling the grain. The charge contained in the first count was proved, but as to the alleged overcharge for shoveling, it. was not proved. The defendant objected to the submission to the jury of the question of' the overcharge alleged in the second count. The trial judge overruled this objection and submitted the case to the jury upon both counts, who found a general verdict of guilty, and thereupon the court imposed a fine of $250 upon the defendant as a single sentence. The court says, at page 6 : “ The verdict of guilty was followed by the infliction of the lowest penalty for a single offense. The verdict and sentence were justified without considering whether an offense was made out under the second allegation in the indictment. No question as to the form of the indictment was made. The joinder of several distinct misdemeanors in the same indictment is not a cause for the reversal of a judgment where there is a general verdict and the sentence is single and is appropriate to either of the counts 'upon which the conviction was had. (Polinsky v. People, 73 N. Y. 65.) Even if the alleged overcharge for shoveling was not made out, the verdict and sentence are supported by the findings of the jury on the other branch of the case, and the refusal of the judge to withdraw from the jury the consideration of the question, whether there was an overcharge for shoveling, did not prejudice the defendant.”

The same argument could have been made in that case which was made in the case at bar by the learned counsel for the appellant; that as the court refused to eliminate the second count from the consideration of the jury, and as the jury found a general verdict, it is impossible to say upon which count the conviction occurred. The jury may have disbelieved the People’s evidence under the first count, but reached the conclusion that in some manner the defendant had gotten hold of the money that had been stolen by others from the person of the complainant.'

Observe that in the Budd case the Court of Appeals looked into the records to see whether there was any evidence upon which a conviction could be reached by the jury upon the second count in the indictment with a view of determining the ground upon which the jury acted, and the court called to its aid also, in determining the question whether the defendant had been prejudiced in the disposition of the case, the fact that a single sentence was imposed, which was appropriate to either count in the indictment. In Polinsky v. People (supra) there was in the indidtment a joinder of several offenses concerning the exposing for sale of adulterated milk and the bringing of such milk into the city óf New York for sale. They were distinct offenses. There was a plea of guilty and a single sentence was imposed which was permissible under any of the counts of the indictment. The court sustained the sentence and said, at page 69 : “ The joinder of several distinct misdemeanors in the same indictment'is not a cause for the reversal of the judgment on writ of error when the sentence is single, and is appropriate to either of the counts upon which the conviction was had. (Kane v. People, 8 Wend. 203; People v. Rynders, 12 id. 425; People v. Costello, 1 Denio, 83; People v. Baker, 3 Hill, 159; People v. Liscomb, 60 N. Y. 559.)”

In People v. Dunn (90 N. Y. 104, 107) the indictment contained five counts, the first three charging one kind of misdemeanor, the last two charging another of a different character and punishable differently. In that case the court queried whether the prisoner had the right to put the prosecution to its election or to require the jury to convict only on one of the misdemeanors ; but it held that, as that had not been done, the question could not be raised upon appeal or by objection to the evidence at the trial. (Citing Hawker v. The People, supra.) This case is certainly conclusive upon the appeal of the defendant Slattery.

It is true that the offenses joined in the indictment in the case at bar were not misdemeanors, but felonies, but under our former criminal practice and at common law distinct felonies of the same degree charged against the same defendant could be joined in the same indictment subject to the power of the court to direct the prosecutor to elect upon which count he would proceed to try the defendant or to direct that a nolle prosequi be entered as to all but one of the counts, which was frequently done, as the joinder of distinct felonies tended to confound' the prisoner in his defense, confuse the jury and abridge the defendant’s right of challenge of the trial jurors. (1 Barb. Crim. Law [3d ed.] 714; 2 Hale, 173; 1 Leach, 1103; Archibald’s Crim. Proc. [Pom. Notes] 292, and notes; People v. Rynders, supra; Kane v. The People, supra.)

Now, as we have seen under our Code of Criminal Procedure, if more than one felony is united in the same indictment, the defendant’s only remedy is by denrurrer, and if this right is waived by failing to demur, it is an open question whether the court has the right as under the old practice, to compel an election or dismiss all but one count of the indictment. No reason is perceived why, tinder our present system, where the right to challenge the jurors is given to a defendant, whether upon a trial for a misdemeanor or a felony (the number of challenges being regulated only by the gravity of the offense with which the defendant is charged), the principle applied in cases of misdemeanors in the authorities above cited .does not apply to felonies.

Rapallo, J., says in People ex rel. Tweed v. Liscomb (60 N. Y. 600) that the doctrine in England at one time was that the prisoner could not be tried for various, distinct felonies under one indictment, because it would .tend to embarrass him in his defense, confound the jury and the prisoner, and prejudice him in his challenges of the jury; the law of England allowing to the prisoner a certain number of peremptory challenges in cases of felony. But the objection to the joinder of several offenses in one indictment does not exist in cases of misdemeanors, because in those cases by the law of England the prisoner has no right of peremptory challenge, and Judge Rapallo adds: It is not easy to perceive why uniting several charges of different offenses in the same indictment is not as likely to embarrass the prisoner in his defense, and confound him and the jury, in cases of misdemeanor, as in cases of felony. But, perhaps, the English judges, in view of the entire control which they could, in general, exercise over the conduct of the trial, and the amount of punishment to be inflicted in cases of misdemeanors, considered that it was in their power to adjust any difficulties which might arise in that class of cases, while they could not exercise like powers in cases of felony where the punishment was prescribed by law.” And this reason is an excellent one for the difference, because at the time this rule obtained in England the punishment for misdemeanors was in the discretion of the court. It will be seen, therefore, that the reason for the English distinction between felonies and misdemeanors to which we have referred does not exist in this country, and, as Judge Rapallo says, no difference exists, so far as the rights of the prisoner are concerned, whether the joinder of different offenses in one indictment and their trial in one proceeding are felonies or misdemeanors.

In People v. McGeery (6 Park. Cr. Rep. 653) in 1863 the Monroe General Term held that on a general verdict of guilty rendered upon the trial of an indictment which contained counts for burglary, larceny and for receiving stolen property, knowing it to have been stolen, the defendant was properly sentenced for the highest crime charged in the indictment, and the same General Term in The People v. Bruno (6 Park. Cr. Rep. 657), where an indictment contained two counts, one for larceny and the other for receiving stolen property, knowing it to have been stolen, and the jury found a general verdict of guilty, and it appeared that both counts related, to the same transaction, held that there was no ground for sustaining a motion in arrest of judgment, but that judgment should be given for the highest grade of offense. In the last case the prisoner’s counsel moved the trial court in arrest of judgment on the ground that the indictment contained two counts, one for larceny and the other for .receiving stolen property, knowing it to have been stolen, and that the jury having found the general verdict of guilty, it was impossible (it was urged) for the court without an arbitrary selection to determine the proper judgmen t to be pronounced •—very much the same point as is made here in the Kerns case.. That point, however, was overruled by the appellate court and the conviction affirmed.

It is impossible for us to see from the record before us wherein the defendant Kerns was prejudiced by the proceedings of the trial court that we have considered; that being so, our manifest duty is to affirm his conviction.

The judgment and order of the Court of Sessions of Monroe county in the case of the appellant Michael Slattéry, and also in the case of Edward Kerns, should be affirmed.

All concurred.

Judgment and order affirmed.  