
    People v. Bosworth.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1892.)
    1. Testimony of Accomplice—Province of Jury.
    Where evidence is introduced to corroborate an accomplice’s testimony, (Code Crim. Proc. § 399,) the truth of such evidence, and whether, if true, it tends to connect defendant with the crime, are for the jury.
    2. Same—Third Degree—Indictment. •
    An indictment alleging that defendant “feloniously, willfully, and burglariously did break and enter the building * * * with an intent to commit a crime therein, and with an intent feloniously, willfully, and unlawfully to steal, take, and carry away therefrom goods, chattels, and personal property in said building then and there being,” sufficiently alleges the crime of burglary in the third degree; Pen. Code, § 498, declaring guilty of burglary of the third degree a person who,'with intent to commit a crime, breaks and enters a building.
    8. Criminal Law—Punishment for Second Offense.
    Pen. Code, §§ 688, 689, prescribing additional punishment for second offenses, are constitutional.
    4. Same—Indictment.
    Where it is sought to subject defendant to an additional punishment on conviction of a second offense, it is proper to allege in the indictment the evidence which would establish that the crime therein charged is a-second offense.
    5. Criminal Law—Declarations of Defendant.
    The acts and declarations of defendant on the day after the crime charged was committed are competent evidence against him.
    6. Same—Witness—Wife of Accomplice.
    The wife of one under indictment for the same offenses as defendant is a competent witness against defendant.
    7. Same—Evidence.
    The attorney of defendant’s accomplice, having testified to conversations with his client, in which the latter asserted that defendant was the cause of the crime, the testimony of such accomplice as to the date of such conversations was properly admitted.
    Appeal from court of sessions, Broome county.
    Elmer J. Bosworth was indicted and tried for burglary in the third degree, and appeals from a judgment of conviction, from an order denying a motion made in behalf of defendant in arrest of judgment, from an order denying a motion made in behalf of defendant for a new trial on a case and exceptions, made and settled on the ground that the verdict was contrary to law and against the evidence, and on the exceptions taken at the trial, and from a judgment that defendant was guilty of burglary in the third degree, “ and that he be sentenced to the state prison at Auburn for the term of five years and three months.”
    Affirmed.
    The indictment charged that the appellant, on the 19th day of October, 1890, at the town of Dickenson, “feloniously, willfully, and burglariously did counsel, command, induce, or procure one Archie Adams feloniously and burglariously then and there to break and enter the building of one S. Melvine ÍBaird, with an intent to commit a crime therein, and with an intent feloniously, willfully, and unlawfully to steal, take, and carry away therefrom the goods, chattels, and personal property in said building then and there being; and the said Archie Adams, in pursuance of the said counsel, command, inducement, or procurement of said Bosworth, did then and there feloniously, willfully, and burglariously break and enter the building of the said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully, and unlawfully to steal, take, and carry away therefrom the goods, chattels, and personal property in said building then and there being; whereby the said Elmer Bosworth did become a principal in the commission of said offense, and he, the said Bosworth, then and there feloniously, willfully, and burglariously did break and enter the building of said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully, and unlawfully to steal, take, and carry away therefrom the goods, chattels, and personal property in said building then and there being, contrary to the statute in such case made and provided.”
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      A. D. Wales, for appellant. W. D. Painter, Dist. Atty., for the People.
   Hardin, P. J.

It was proper to charge in the indictment the defendant as a principal. Section 29 of the Penal Code provides as follows: “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or 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 theory of the prosecution is that the defendant directly or indirectly counseled, commanded, induced, or procured Archie Adams and Thomas Kehoe to commit the crime charged in the indictment. The verdict of the jury is to the effect that the defendant is guilty as principal. See People v. Kief, (Sup.) 11 N. Y. Supp. 926, and 12 N. Y. Supp. 896, affirmed 27 N. E. Rep. 556; People v. Bliven, 112 N. Y. 79, 19 N. E. Rep. 638.

Thomas Kehoe was called as a witness, and testified that Adams and he committed the crime, and he also “implicated” the defendant; and he states that the defendant counseled and induced the crime. In People v. Williams, 29 Hun, 522, we had occasion to say, “the testimony of an accomplice is not sufficient to convict of a crime,” and to quote section 399 of the Code of Criminal Procedure, which is as follows: “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” When the people rested, the defendant moved for his discharge, among other grounds, that the people had “failed to connect the defendant with the commission of the offense charged in the manner required by section 399 of the Code of Criminal Procedure.” In response to the motion the court observed: “The people have proven" a series of conversations and circumstances from which I assume they will argue it does corroborate Kehoe, and connect the defendant with the transaction. You will undoubtedly argue that it does not; and whether it does, and, if it does, it is sufficient to convict him of the crime, is a question of fact for the jury. The court cannot take it away from them, and the motion must be denied.” The defendant took an exception to the ruling. In the course of the charge the learned county judge said: “There should be some fact testified to, entirely independent of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the defendant is implicated in it. I charge you, in this connection, that there is testimony of witnesses other than ThomasICehoe, which, if true, might tend to connect the defendant with the com mis- . sion of the crime, but whether such testimony is true, or, if you believe it to-be true, whether it is sufficient to connect the defendant with the commission of the crime here charged, I submit as questions of fact to you; under the rule-which I have just laid down. In this connection I say to you that it is not necessary that the corroborative evidence itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime.” The defendant took an exception to that portion of the charge. After a careful reading of the evidence, and reflection thereupon, giving full force and effect to all the testimony and circumstances revealed, we are of the opinion that the court of sessions committed no error in refusing to direct a verdict for the defendant or in the language used in the charge. We are of the opinion that the evidence tended to corroborate ICehoe, and besides his evidences the prosecution produced “such other evidence as tends to connect the defendant with the commission of the crime.” In People v. Hooghkerk, 96 N. Y. 149, the court, in giving construction to section 399 of the Code of Criminal Procedure, holds that “it does not require that the whole case shall be proved outside the testimony of the accomplice, but simply requires evidence-from an independent source of some 'material fact tending to show, not roly that the crime has been committed, but that the defendant was implicated in-it.” In People v. Everhardt, 104 N. Y. 591, 11 N. E. Rep. 62, it was said that the section was complied with “if there is some other evidence fairly tending to connect the defendant with the commission of the crime charged,, so that the conviction will not rest entirely upon the evidence of the accom-, plice. The question as to whether the evidence is sufficient corroboration is for the determination of a jury.” In People v. Elliott, 106 N. Y. 292,12 N. E. Rep. 602, it was said: “It is not necessary that the corroborative evidence,, of itself, should be sufficient to show, the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. * * . * The court, before it should submit the ease to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of a crime, and when there is then it is for the jury to determine whether the-corroboration is sufficient to satisfy them of the defendant’s guilt.”

2. It is insisted in-behalf of the appellant that “there is an absolute failure to prove the crime of burglary in the third degree, with which the prisoner stands charged, and of which he was convicted.” The indictment alleges that the defendant “feloniously, willfully, and burglariously did break and enter the building of the said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully, and unlawfully to steal, take, and carry away therefrom the goods, chattels, and personal property in said building then' and there being; whereby the said Elmer Bosworth did become a-principal in the commission of the said offense, and he, the said Bosworth, then and there feloniously, willfully, and burglariously did break and enter the building of said Baird with an intent to commit a crime therein, and with-an intent feloniously, willfully, and unlawfully to steal, take,’and carry away therefrom the goods, chattels, and personal property in said building then and there ■ being,, contrary to the statute in such case made and provided, and, against the peace'of the people of the state of New York, and their dignity.” We think the language sufficient to uphold the charge of the crime of burglary in the third degree. Section 498 of the Penal Code provides that “a person who either, (1) with intent to commit a crime therein, breaks and enters a building, or a room or any part of a building, * * * is guilty o£ burglary in the third degree.” Larceny is defined in section 528 of the Penal Code, where it is provided that “a person who.^pth intent to deprive or defraud the true owner of his property, or of tb^Mp and benefit thereof, or to appropriate the same to the use of the talce^^Hf any other person, either (1) takes from the possession of the true owj^^Jr* * * or secretes, withholds, or appropriates to his own use or tl^^^pmy other person other than the true owner, any money, personal prop* * * steals such property, and is guilty of larceny.” The jury w^re warranted by the evidence in finding that the horse was taken “from the possession of the true owner * * * with intent to deprive” the owner thereof, and that the horse was secreted with like intent. In People v. Dumar, 106 N. Y. 508, 13 N. E. Rep. 325, in speaking of section 528 of the Penal Code, the court said: “We find * * * certain acts enumerated, either one of which, performed by any person with intent to defraud the true owner of his property, or of its use or benefit, or to appropriate the same to the use of the taker, or of any other person, makes him guilty of larceny, and he, .in the language of the Code, steals such property. The crime is committed when, with that intent, a person either, first, takes such property from the possession of the true owner or of any other person,” etc. In Harrison v. People, 50 N. Y. 518, it was held: “To constitute the offense of larceny there must be a taking of the goods from the power or control of the owner. A temporary possession, however, by the thief, though but for a moment, is sufficient.” In People v. Pollock, (Sup.) 4 N. Y. Supp. 297, the court,, in commenting upon section 528 of the Penal Code, and the requirements thereof, said: “To constitute guilt there must be evidence of intent to deprive or defraud the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had.” In the case before us the court, in its charge to the jury, after calling their attention to the statute as to burglary, said the offense alleged was that “of breaking and entering the building on the night in question with the intention of committing a crime.” There was no request to make the charge more definite or specific. In support of the learned counsel’s argument in behalf of the appellant, citation is made to People v. Woodward, 31 Hun, 57. In that case the defendant was convicted of grand larceny, having taken a horse from the stable of one Jewell, and killed and buried it in a pit. There was a request that the court charge that “there must be an intent on the part of the taker to reap some advantage or benefit from the taking;” and it is stated in the course of the opinion, viz.: “Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge were equally applicable to a misdemeanor.” Ho such request and refusal are found in the case before us. If it be assumed that the killing of a domestic animal is malicious mischief, as held in People v. Smith, 5 Cow. 258, and a crime, (Bump v. Betts, 19 Wend. 419,) and that the same is a violation of section 654 of the Penal Code, it might be said with some plausibility that the commencement or inception of the crime took place when the horse was taken from his stall in the barn. However, that question was not agitated at the trial, or presented, either by a motion at the time the people rested, or at the close of the evidence, nor was the court requested to charge upon that subject, and therefore we forbear any further comment thereon. In People v. Richards, 5 N. Y. Crim. R. 364, 44 Hun, 283, it was said in the opinion: “It is not needful to á conviction that an intent to steal or an intent to * commit a felony ’ shall be shown, provided the intent to commit any other crime is averred and established.” Although that case was reversed, as appears, (108 N. Y. 137, 15 N. E. Rep. 371,) it was upon another ground, to wit: “That the building, erection, or inclosure” was not embraced within section 498 of the Penal Code, it being observed in the course of the opinion, (page 147, 108 N. Y., and page375,15 N. E. Rep.,) viz.: “We simply intend to decide this cm^, and no other;” and “ when we come to examine the indictment and tt^Lproof giving a description of the structure, we come to the belief that it Nj*M=ally nothing more than a grave above ground. ” We are of the opinion th^^^Kndictment sufficiently alleged facts constituting burglary, and that the^^Bnce warranted a finding of the essential facts constituting the crime of bf^^nr in the third degree.

3. It seems to have been^Hff that a prior conviction, to be available in increasing punishment for a ^rcond offense, must be alleged in the indictment. People v. Youngs, 1 Caines, 37, (decided in 1803;) People v. Price, (Sess.) 2 N. Y. Supp. 414. In People v. Stanley, 47 Cal. 113, it was held that “a statute providing that a person shall be subjected to an increased punishment upon conviction for a second offense is not in violation of a constitutional provision that no person shall be twice put in jeopardy for the same offense.” The opinion in that case cites Rand v. Com., 9 Grat. 742, in which it was held that a similar statute in Virginia was not unconstitutional; and the opinion also cites Ross' Case, 2 Pick. 170, and Plumbly v. Com., 2 Metc. (Mass.) 413, as cases approving of a similar statute. In Gibson v. People, 5 Hun, 542, the indictment set out a former conviction, and in the course oí the opinion of Merwin, J., delivered in' that case, it was said: “The charge in the indictment should be so alleged as to be intelligible in its legal requisites, and inform the defendant of what he has to meet;” and in Wood v. People, 53 N. Y. 511, it was said: “The discharge in one of the ways mentioned in the statute is as material and necessary to constitute the offense as the prior conviction. The facts of the imprisonment upon the prior conviction, and the manner of the discharge, must therefore be alleged and proved.” Wood v. People was referred to approvingly in Phelps v. People, 72 N. Y. 355. In People v. Cook, 45 Hun, 37, in referring to a statement in an indictment, it was said: “It is to be deemed a first offense, unless the contrary is charged.” We are of the opinion that sections 688 and 689 of the Penal Code, relating to second offenses, are valid, and that it was proper to allege in the indictment the evidence which would establish that the crime charged in the indictment was a second offense, and to give proof thereof upon the trial. People v. Price, (Sup.) 6 N. Y. Supp. 833, affirmed 119 N. Y. 650, 23 N. E. Rep. 1149. In People v. Raymond, 96 N. Y. 38, it was said that “the first offense is not made an element of or included in the second, but is simply a fact in the past history of the criminal, to be taken into consideration in prescribing punishment therefor;” and in the opinion in that ease it was said: “The language of the Code makes no reference to second offenses of the same character or grade with the first. It contains no such limitation, and we think none should be intended. Its reason was obviously independent of any such similarity. That the accused has already been convicted of a felony, or an attempt to commit one, or of a ‘ petit larceny,’ shows that punishment has done him no good; that no reformation was effected; that he is a persistent criminal, towards whom mercy is misplaced; and by reason of this character of the man, thus shown by his conduct, greater severity of punishment is prescribed. The reason is the same whether both crimes are of similar character or of the same grade or not. Both are crimes, and the perpetration of the second, however different, shows such a persistence in evil, such a continued criminality, as to justify and make prudent a severer penalty than should be inflicted upon the first offender. If we adopted the construction sought, a prisoner might have been convicted of many felonies, and yet, by judicious changes from one to another, or running up or down the different grades, escape entirely the penalty of a second offense.” Sections 688 and 689 provide for additional burdens upon offenders, and are not affected by the provision in section 714 of the Penal Code, permitting persons convicted of any crime to be competent witnesses in any civil or criminal cause.

4. After Fannie Kehoe had detailed a conversation which she held with the defendant the next day after the alleged offense, she was asked the following question: “Question. Now, I ask her how he appeared.” This was objected to as improper and incompetent. “She is not competent to give any evidence of that kind.” In response the court observed: “I think she ought to state what he did and said.” Thereupon the question was put to her: “Question. You may state what he did or said, if anything. ” The objections were renewed, and the witness answered: “He walked the floor, and he was very nervous.” Thereupon the counsel for the prisoner objected to and moved to strike it out, “and, if it were shown, it would have no sort of bearing upon this case.” The court observed, “It may stand;” and thereupon the defendant duly excepted. The motion to strike out was too broad. In People v. Wentworth, 4 N. Y. Crim. R. 207, we held that, “ where a part only of an answer is responsive, a, motion should be made specifically to strike out the irresponsive portion.” The following question was then put to the witness, viz.: “Question. Go on. Answer. He drank a good deal. (Objected to as improper, irrelevant, and incompetent. Objection overruled, and defendant duly excepted.) A. He was lying in bed part of the time. Then he would get up, and walk the floor. (Same objection, ruling, and exception.)” In Linsday v. People, 63 N. Y. 154, Allen, J., says: “The question to the witness Moore as to the conduct of the accused about the time of the alleged murder was not objectionable. The acts and declarations of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury.” We think the exceptions are unavailing.

5. Thomas Kehoe, who was concerned in the commission of the offense, was called as a witness in behalf of the people, and testified in effect “that he was a party to this crime, and is under indictment for it;" and it was conceded he was under indictment for it. After he had testified, his wife, Fannie Kehoe, was called as a witness, and, after she was sworn, the defendant’s counsel was permitted to ask preliminary questions of her, and after it appeared that she was the wife of Thomas Kehoe, it was objected that she was an incompetent witness. The objection was overruled, and defendant took an exception. We think she was a competent witness. Haskins v. People, 16 N. Y. 344. Chapter 182 of the Laws of 1876 provided that “all persons jointly indicted shall, upon the trial of either, be competent witnesses for each other, the same as if not included in the same indictment;” and in People v. Dowling, 84 N. Y. 484, it was held error to refuse the “testimony of Myron Dowling, though he stood jointly indicted with the defendant in error;” and section 715 of the Renal Code provides that “the husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person. ” People v. Petmecky, 2 N. Y. Crim. R. 458, is an authority for holding that the wife of the defendant may be called as a Witness against him in virtue of section 715 of the Penal Code, though she may not be compelled to disclose any confidential communication passing between herself and her husband during their marriage. In Wixson v. People, 5 Parker, Crim. R. 127, it was said: “If it was proper to allow Lockwood to be sworn, [an accomplice,] of course it was no error to admit his wife. She would not have been competent had her husband been incompetent as an accomplice. ” Upon the trial of Linsday v. People, supra, Vader, an accomplice, was sworn as a witness for the prosecution, and she gave evidence tending to corroborate her husband. The conviction was affirmed by this court, (5 Hun, 104,) and by the court of appeals, (63 N. Y. 143.)

6. In behalf of the defense, A. P. Fish, an attorney, who had been employed to defend Kehoe before a justice, was called as a witness, and he testified that on the forenoon of October 20th, Monday, Mrs. Kehoe called at his office, and asked him to appear for Kehoe, and that on that evening he went up to Bosworth’s house and in Bos worth’s private sitting room had an interview with Bos worth, who was lying in bed or on the bed, and that he there arranged to see Kehoe in the morning, “and tell him to keep still.” He also testified: “Bosworth did not have anything to say on the subject of keeping his mouth shut. I said it myself.' Bosworth was lying there in bed.” At a subsequent stage of the case Fish was called for further cross-examination, in which he stated that he saw Kehoe at the jail Tuesday forenoon; and he also testified: “I did not ask him at that time who was at the bottom of it. I did later in the week, but not then: I only saw him once Tuesday. He did not tell me at the time that Bosworth was at the bottom of it.” In the course of his redirect examination in response to the counsel of the defendant, he stated: “It was Friday forenoon the first he ever told me anything like that Bosworth was at the bottom of it.” Thereafter Thomas Kehoe was recalled for the people, and testified: “I saw Mr. Fish at the jail Tuesday morning, and had a conversation witli him.” Against the objection and exception of the defendant he was permitted to testify that the conversation referred to by Fish occurred on Tuesday morning. We think it was proper to fix the date-of the conversation.

Appellant has called our attention to other exceptions taken during the progress of the trial, which have been examined,-and we are not satisfied that any of them present error which calls for a reversal. People v. Gonzalez, 35 N. Y. 49; section 542, Code Crim. Proc. We think the verdict of the jury should-stand, and defendant serve out his sentence, and the judgment upon the verdict remain. Judgment and order of the court of sessions of Broome county affirmed, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to the court of sessions of Broome county, pursuant to sections 547 and 548 of the Code of Criminal Procedure. All concur.  