
    Supreme Court—General Term—First Department.
    
      July, 1889.
    PEOPLE v. DUNN.
    Larceny—Indictment and Proof under Penal Code, § 528.—Who are Accomplices.—Accessories.—Amendment of Indictment.
    It is not necessary that an indictment for larceny should be drawn with reference to one or the other of the special classes of larceny as defined by section 528 of the Penal Code. It is sufficient if the indictment charges the crime and gives a concise statement plain enough to apprise the defendant of the charge made against him.
    An indictment charging that defendant and another “ did steal, take and carry away” certain property, is supported by evidence that the defendant counseled, aided, and procured that other defendant to steal certain property of his employer in his custody as clerk. In such case there is no variance'between the indictment and the proof.
    To constitute an accessory, one must not alone assist the principal to escape punishment, but must help him to elude or evade capture.
    Nor does the receipt of property, knowing it to have been stolen, render one an accessory to the larceny thereof.
    The receipt of the stolen property by the prisoner having been proven, and the accomplice having testified that ho, at the counsel and advice of the prisoner, stole the property, a witness testified that the prisoner told her in reference to the accomplice: “If it hadn’t been for me he wouldn’t have taken as much as he did, he would have gone off with a great deal less ; and if he had taken my advice ho would have taken enough money to cripple the bank.” Held, that this was sufficient corroboration of the accomplice.
    A description, in an indictment for larceny, of the stolen property as “ written instruments and certificates of deposit issued by and under the authority of the United States, and called United States gold certificates, each certifying that there had been deposited in the treasury of the United States $1,000 repayable to the bearer of such instrument and certificate upon demand, the same being then and there wholly unsatisfied, and of the value of $1,000,” is a sufficient description of the property.
    Evidence that stolen gold certificates were received and used in the ordinary course of business as money, is sufficient proof of their value.
    An amendment in the indictment of the name of the corporation from whom property was stolen, which merely corrects a misnomer, is not error.
    The charge of the trial judge as to evidence, considered, and held not to be erroneous.
    Appeal by defendant, John B. Dunn, from a judgment of the Court of Oyer and Terminer of Hew York County, Hon. Geobge C. Barrett presiding, entered December 15, .1888, upon a conviction of larceny in the first degree.
    An indictment was filed by the Grand Jury in the Court of General Sessions of the peace of the city and county of Hew York, on December 23, 1887, accusing Bichard S. Scott and John B. Dunn of the crime of grand larceny in the first degree, and John B. Dunn of the crime of criminally receiving stolen property. This indictment, which was transferred for trial to the Court of Oyer and Terminer, Hew York county, contained two counts, the first being for grand larceny in the first degree, charging both Dunn and Scott with that crime; and the second, charging John B. Dunn with the crime of criminally receiving stolen goods, which said goods were alleged to have been stolen by Bichard S. Scott. On the trial, after the prosecution had rested, the court directed the district attorney to elect upon which count of the indictment he would ask to have the case submitted to the jury, and the district attorney elected to go to the jury upon the-first count in said indictment, whereupon the second count was, by order of the court, stricken out of the indictment.
    Tiie first count of the indictment was as follows: “ The said Bichard S. Scott and John B. Dunn, both, late of the city of New York, in the county of New York aforesaid, on the first day of June, .in the year of our Lord one thousand eight hundred and eighty-five, at the city and county aforesaid, with force and arms, one hundred and fifty written instruments and certificates of deposit, issued by and under the authority of the government of the United States, and called United States gold certificates, each certifying that there had been deposited in the treasury of the United States one thousand dollars in gold coin, repayable to the bearer of such instrument and certificate upon demand, the same being then and, there wholly unsatisfied, and of the value of one thousand dollars each, and three hundred other instruments and certificates of deposit issued by and under the authority of the government of the United States, and called United States gold certificates, each certifying that there had been deposited in the treasury of the United States five hundred dollars in gold coin, repayable to the bearer of such instrument and certificate upon demand, the same being then and there wholly unsatisfied, and of the value of five hundred dollars each; of the goods, chattels, and personal property of a corporation known as the Bank of the Manhattan Company, then and there being found, then and there feloniously did steal, take and carry awayj against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.”
    After the prosecution had rested, the court permitted the indictment to be so amended that said “ goods, chattels, and personal property” were alleged to be the “ property of a corporation known as e the President and Directors of the Manhattan Company.’ ”
    The following evidence was given by the prosecution, none being offered by the defendant:
    Richard S. Scott was on June 1, 1885; and for about six years prior thereto, the paying teller, or first teller, of the bank commonly known as the Manhattan Bank. Prior to June 1, 1885, said Scott had stolen about $10,000 belonging to said bank. John IÍ. Dunn was a lawyer and a cousin of Scott’s wife. On May 25, 1885, Scott, being then $10,-000 short in his account with the bank, called on Dunn, at his office in this city and had a conversation with him. Scott informed Dunn of the difficulty he was in, and asked his aid and advice, telling Dunn he was $10,000 short in his account, and had lost that amount speculating in stocks. Dunn, after inquiring as to whether Scott had made any false entries to cover up his defalcation, asked, him how much money he had access to at the bank, and, learning that it was about two or three millions of dollars, told Scott that if he, Dunn, was in .Scott’s place, he would take all the money he could, and “ skip” to Canada, and that he could not be extradited. Dunn further agreed to look up the law-on the subject, and to meet Scott the next day at the library in the Equitable Building. The next day, May 26, 1885, Dunn met Scott according to his agreement. They discussed together the law of extradition. Dunn told Scott he must not take much money with him to Canada, and told him that as a lawyer he had no right to give him positive advice what to do or what not to do, but he said, if he was in Scott’s place, he would take money enough to cripple the bank and leave it with some friend, and skip to Canada.
    Dunn also told Scott to leave the money he was to steal with some one, and that any one had a right to take a package from him and agree to take care of it until he (Scott) should return. Scott told Dunn that he thought the best thing he could do would be to go to the directors of the bank and confess. Dunn upbraided him, and agreed to take from him “ any package or anything” he wanted him to take care of; advised him to go to Canada, and counseled him that in all events he must keep his mouth shut, and follow his instructions. On May 28, 1885, Scott and Dunn again met, and the same matters were discussed between them, and advice given by Dunn to Scott as to his flight to Canada, and Dunn advised him to leave for Canada on the next day, Friday, it being the day before Decoration Day, - Dunn also told him that in writing to him he (Dunn) would .sign his letters “ A.” On June 1, 1885, Scott took from the bank $150,000 in gold certificates of the denominations of $1,000 and $500. Then Scott met Dunn at Fifty-ninth street and Sixth avenue and they went into Central Park together, and Scott gave Dunn a package containing $140,-000. Scott then went to Canada, and afterwards to England. In October, 1886, Dunn went to England aiid had numerous conversations there with Scott, in which the question of a compromise with the bank was discussed. Scott received some $11,000 from Dunn before the latter’s arrival in England, and this money was in $1,000 and $500 gold certificates. On October 22, 1886, Dunn left England. Thereafter several letters passed between Scott and Dunn concerning a compromise with the bank. In February, 1887, Scott received a letter from Dunn from New York, in which he said he had lost all the money entrusted to him by Scott in stock and grain speculation. Scott, in October, 1887, went back to Canada from England, and from Canada •came to New York.
    While Scott was in England Dunn had many conversations with Scott’s wife, in which the matter of the larceny •of the bank’s money was discussed, and in one of these conversations Mrs. Scott asked Dunn as to the amount stolen from the bank by her husband, and he told her $160,000, and added: “ Lizzie, if it had not been for me he would not have taken as much as he did. He would have gone •off with a great deal less, and if he had taken my advice he would have taken enough money to cripple the bank.” Dunn also gave Mrs. Scott some $6,500 in $1,000 and $500 bills, and these bills, she testified, were of the same kind which he (Dunn) afterwards sent her husband in England. After her return from England, Mrs. Scott had an interview with Dunn and told him he could keep $50,000 of the money, but that she must have $70,000 to settle with the bank, and Dunn told her the money was all gone. Mrs. Searls, sister of Mrs. Scott, testified to several interviews she had with Dunn, during which she sought to obtain $70,-000 of the money for Scott from Dunn. Dunn wrote Mrs. Searls two letters in which he gave an account of how lie-lost the money.
    In March, 1887, William Cross had a conversation with Dunn, and told him that Mrs. Scott had told him (Cross)that Scott had left $140,000 with Dunn when he ran away. Dunn admitted that it was so, but said he had lost the money speculating. On the trial it also appeared, from the testimony of Baldwin, the cashier of the Manhattan Bank, that on June 1, 1885, the bank lost $160,000, and that at that time Scott was paying teller and had access to the cash, and was chargeable ultimately with all moneys received by the-bank.
    Upon his trial, defendant was convicted of larceny in the-first degree, and sentenced to imprisonment for nine years and six months.
    
      Silas M. Stilwell, for defendant, appellant.
    The trial judge erred in stating that the witnesses, Mrs. Scott, Mrs. Searls, and William Cross were not accomplices or accessories after the fact in the commission of the felony. Neither the Penal Code nor the Code of Criminal Procedure gives a definition of the word “accomplice.” But under the Penal Code, section 29, parties to a crime are-divided into either a principal or accessory.
    Mr. Bishop, in defining the common law in respect to accessories after the fact, of which the above is the embodiment, says:—“ The true test for determining whether one is an accessory after the fact is to consider what he did was-done by means of his personal help to his principal, with a view of enabling the principal to elude punishment—the kind of help rendered appearing to be unimportant.” 1 Bish. Crim. Law, § 695, and cases cited.
    Under the above definition of an accessory, it is clearly evident that it covers the case of all the witnesses called by the people.
    
      Lizzie D. Scott and Jennie A. Searls aided Richard S. Scott, as also did William Cross, both directly, and also indirectly through their concealment of the facts alleged to have been within their knowledge respecting the appellant’s relations to Scott and his knowledge of his whereabouts; all of them with a knowledge that Scott had committed a felony, and was liable to arrest.
    Bouvier’s Law Dictionary defines the word “ accomplice ” as follows: “ In criminal. law, one "who is in some way concerned in the commission of a crime, though not as a principal. The term in its fullness includes in its meaning all persons who. have been concerned in the commission of a crime, all parbiceps criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact.” See Fost. Crim.. Cases, 341; 1 Russell on Crimes, 21; 4 Blackstone, 331; 1 Phillips Ev. 328 ; Lindsay v. People, 63 N. Y. 153 ; Code Crim. Proc. § 399; 1 Bish. Crim. Proc. (2d ed.) 1084.
    Section 399 of Code Grim. Proc., made as it was for the protection of the accused, should be strictly construed in his favor. People v. McQuade, 6 N. Y. Crim. Rep. 1.
    In the present case, as before stated, the people sought to corroborate Scott, the chief offender, primarily as to the second count of the indictment, and indirectly as to the first count, by the testimony of other accomplices. It is claimed that this is not within the meaning of the word “ corroboration.” “ If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other, but the same rule is applied and the same confirmation is required as if there were but one.” 1 Greenleaf Ev. § 381; Rex v. Noakes, 5 Car. & P. 326; Blakely v. State, 24 Tex.. App. 616.
    Where testimony of this kind—tainted and qualified, as-, it is, by express provision of law—is allowed to go to the jury without any instruction as to the contingent or qualitative character so imposed, or as to the extent of its competency under the statute, it is proper ground for reversal. Deerfield v. Conn. R. R. Co., 144 Mass. 325; Benham v. Cary, 11 Wend. 83; Trustees of Pen Yan v. Thorne, 6 Hill, 326.
    This is so, even in those cases where the other evidence, in the estimation of the court, would, alone, have been sufficient to sustain the finding of the jury, for the reason that it is not for the court to say to what extent the jury might have been influenced in their consideration of the evidence in the case by such impaired or qualified testimony. Sherman v. D. L. & W. R. R. Co., 106 N. Y. 542, 547; Coleman v. People, 58 N. Y. 555 ; Williams v. Fitch, 18 Id. 546; Root v. Wright, 84 Id. 72; Bacon v. Frisbie, 80 Id. 394 ; Foote v. Beacher, 78 Id. 155 ; Erben v. Lorillard, 19 Id. 299; Baird v. Gillett. 47 Id. 186; Stokes v. People, 53 Id. 165 ; Greene v. White, 37 Id. 405.
    The testimony of each of these witnesses went to the jury under the express ruling of and direction of the court, that neither of the three was to be treated asan accomplice; and, further, that their testimony was proper for the consideration of the jury as tending to corroborate Scott.
    II. There was a fatal variance between the act charged in the indictment as constituting the offense, and the act proved upon the trial.
    The act constituting the offense, as proven at the trial, should have been charged in the indictment to have been that Bichard S. Scott, while having in his possession, custody or control as agent, clerk or trustee of the corporation in question, large sums of money, appropriated to his own use the sum of $150,000. People v. Dumar, 106 N. Y. 502.
    From the plain language of the second subdivision of section 528 of the Penal Code, the intention was to distinguish the acts of larceny as committed by that class of persons who, by reason of their peculiar relation to the owner of the property or the thing stolen might have at the time of the taking or conversion a temporary or qualified possession of the same.
    Tiie act of taking by a person oecupyilig such relation to the owner of the property, is essentially different from that of an entire stranger. In other words, one takes what has come to his hands in the line of his authority; the other takes that which never came under his custody; i. e., takes from the custody of another. The former in the precise language of the section appropriates; the latter “ takes from the possession of the true owner or of another person ;” which imports an actual or phj’sical trespass—taking from the possession.
    III. There was no evidence to justify a conviction of grand larceny.
    There was no proof whatever offered at the triaDof the value of the gold certificates or written instruments set forth in the said indictment. It is essential in larceny to prove the value, and, where the punishment is greater when the value is over $500, as in this case, than when it is under that sum, the evidence must indicate, and the jury find whether the value is above or below this sum. Williams v. People, 24 N. Y. 405.
    Whatever is averred in the indictment, as to the description of the stolen property, must be proven. No allegation, whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can be rejected as surplusage. 1 Bish. Crim. Pro. (2d ed.) § 485; United States v. McKean, 1 McLean, 429; United States v. Brown, 3 Id. 233 ; United States v. Howard, 3 Sumn. 12; State v. Noble, 15 Me. 476; State v. Jackson, 30 Me. 29; Dick v. State, 30 Miss. 631.
    A copy, of the instrument should'have been correctly set forth in the indictment. At the trial, proof should have been made on the part of the people of a written instrument called by name of gold certificate, and of the amount due and unpaid thereon, and the value of the same should have been proved.
    No certificate was offered in evidence, nor was it shown what, if anything, was due and payable; and there was no evidence offered for the purpose of proving the value thereof in determining whether or not the accused was guilty of the crime of grand larceny. The first objection might be taken to the averment of the written instrument in the indictment, to wit, that inasmuch ag the Government of the United States is a government of limited authority, it failed to set forth the act of Congress under which said written instrument or certificate of deposit was issued. Second, that it failed to state by what government the same was issued other than the allegation—the Government of the United States. It might possibly be inferred from this, that it was not the United States of America, but it might be the United States of Mexico, the United States of Venezuela, the United States of Columbia, or some other government which is commonly or generally known under the title of tlie United States.
    The fact, that the certificates, stolen, were not in the possession of the prosecution did not excuse the failure to prove them. Evidence of their contents might have been introduced, without either accounting for the non-production, or giving notice to the defendant to produce. 2 Bish. Crim. Pro. (2d ed.) 753; Commonwealth v. Messinger, 1 Binn. 273; Moore v. Commonwealth, 2 Leigh, 701; People v. Holbrook, 13 Johns. 90; McGinnis v. State, 24 Ind. 500; Reg. v. Brennan, 3 Craw. & Dix. C. C. 109.
    IV. The evidence tended solely to convict the appellant of the offense of receiving stolen goods, not that of advising or counseling Scott to commit the larceny.
    V. A misnomer in an indictment in respect to the name of the party injured is a material and substantial defect, and a statute authorizing any material change or amendment in the averment, as presented by the grand jury, is a nullity. McGary v. People, 45 N. Y. I53; Phelps v. 
      People, 72 N. Y. 334; State v. Williamson, 3 Murphy, 216; State v. Waters, 3 Brev. 507.
    
      John B. Fellows, district-attorney (Wm. T. Jerome, assistant), for the people, respondents.
   Cullen, J.

The appellant was indicted with one Richard S. Scott for grand larceny in the first degree, for .stealing 150 gold certificates of the United States, of the value of one thousand dollars each, the property of the Bank of the Manhattan Company.

The evidence given upon the trial showed that the theft was committed by Scott, who, at the time, was paying teller of the bank; and evidence was giving tending to show that the defendant, Dunn, counseled, induced and procured the theft to be committed.

Scott was used as a witness for the people. He testified, in substance, that having committed peculations from the bank to the extent of §10,000. which he was unable to restore, he applied to Dunn, a practicing lawyer, and a cousin of his wife, for advice; that Dunn advised him to take as large a sum from the bank as he could lay hold of, and then abscond to Canada; leaving, however, the funds to be stolen in the hands of some confidant in the State; that under the treaties Scott could not be extradited from Canada for simple theft; that by leaving the stolen property in this State, he would avoid the penalties of the Canadian law, as to bringing stolen property within the Dominion ; with the funds so stolen, a compromise could subsequently be effected with the bank; that in pursuance of such advice he took from the bank the $150,000, gave the money to Dunn to keep for him, and absconded to Canada. Scott subsequently went from Canada to England. Dunn, from time to time, transmitted small sums from the stolen funds to Scott.

While in England, negotiations were opened between Scott and the bank for the return of the stolen property. When Dunn was called upon for the stolen funds with which to effect the compromise, he failed to produce them, claiming that he had lost them in Speculation. The theft from the bank was also proved bjr its cashier. The people sought to corroborate Scott by his wife, and her brother and sister, who testified to conversations with, and admissions on the part of Dunn, after the theft had been committed, and when negotiations were pending for the restoration of the stolen property. The defendant offered no evidence. A motion was made, at the close of the testimony, that the jury be instructed to acquit the defendant. This motion was denied. The defendant was convicted, and sentenced upon conviction.

The questions discussed on this appeal arise upon the denial of the motion to direct the jury to acquit.

The first contention is that there was a variance between the proof and the indictment. The charge in the indictment was that the defendants did take, steal, and carry away the property therein mentioned. It is not disputed that the offense committed would have been larceny before the Penal Code, because the property stolen had been in the possession of the bank before it was abstracted by Scott. It was also made larceny by the Penal Code, but is claimed that the offense should have been charged under the second subdivision of section 528 of the Penal Code; that is, as an appropriation to his own use by a clerk having property in his possession. This claim is made on the authority of People v. Dumar, 106 N. Y. 502. There’the defendant was charged with having “ taken, stolen and canned away n certain property. The evidence showed that he obtained the property by false pretenses. It was held that the indictment did not state the offense which was proved against the defendant, and for the variance the conviction was reversed. While the Code makes embezzlement and obtaining goods under false pretenses larceny, it was held that under the Code of Criminal Procedure (sections 254,275) the indictment must not only charge the crime, but state the act constituting the crime; and that the act stated as constituting a crime in the indictment was different from the act proved, and lienee the variance. In the opinion delivered in that case, the court, indeed, do lay down the doctrine that larceny can now be committed in four separate ways, and that it was the intention of the legislature to abolish those refinements and distinctions which had so often perplexed the courts as to when an offense was larceny, and when embezzlement. But there is nothing in the opinion which gives ground for the'claim that when the legislature abolished the old distinctions between larceny, false pretenses and embezzlement they intended to create a new classification of offenses, and raise the same difficulties as to determining between the various offenses as existed under the old practice.

It is not necessary that an indictment should be drawn under one or the other of the special classes of larceny as defined by the Code. If so, there would be no improvement in the codification of this branch of the law. For instead of having three crimes, as formerly, to perplex the administration of justice, there would be now four. It is sufficient that the indictment charges the crime, and then gives a plain and concise statement of the act. It is sufficient if that statement be such as to fairly apprise the defendant of the charge made against him. All that was decided in People v. Dumar was that the act stated differed from the one proved. Ho such criticism could justly be made on the statement here.

By the Code of "Criminal Procedure, section 282, words are to be construed in their usual acceptation, in common language, except such as are defined by law, and those are to be construed according to their legal meaning. If the word “steal” is to be considered in its technical meaning, then its use was proper, because the act here committed was larceny at common law. If the words used are to be considered in their ordinary interpretation, in common language, then the terms employed were equally appropriate. By either rule, they fairly and fully informed the defendant of the charge which was made against him. We think that in a case similar to this, and under the system of pleading instituted by the Code, it is perfectly proper to charge the defendant with either having stolen the property, or, as a clerk, having appropriated it to his own use.

It is next claimed that there was no sufficient corroboration of Scott, because the witnesses, Mrs. Scott, Mrs. Searles, and Win. Cross were accomplices, or accessories after the fact, and that the court erred in charging the jury to the contrary. We think the ruling and charge of the court in this respect was correct. Assuming that an accessory after the fact is an accomplice within the meaning of the Code, it is clear that none of these witnesses were accessories.

Mr. Bishop, in his work on Criminal Law, section 695, enunciates the rule that “ The true test for determining whether one is accessory after the fact is to consider whether what he did was done by way of personal help to his principal with a view of enabling the principal to elude punishment. So, to furnish one with a horse to escape, or to conceal or rescue the principal, renders one an accessory, hut not so the failing to make known the felony; forbearance to arrest, or charitably supplying the prisoner with food, or agreeing hot to prosecute, or preventing the attendance of witnesses.” To the same effect is Wharton’s Criminal Law, section 241. Under this rule, plainly none of these witnesses were accessories. In fact, the rule itself is stated too broadly by Mr. Bishop, as is shown by the cases cited by him, where it has been ruled that the prisoners were not accessories. To constitute an accessory, it is not sufficient to assist the prisoner to elude punishment, because failing to prosecute or preventing the attendance of witnesses would produce that result. But to constitute the offense, one must help the principal to elude, or evade, capture. Hone of the witnesses referred to were cognizant of the crime till long after its commission, and till the defendant was secure from capture by his escape to a foreign country. Hone, except his wife, rendered any aid or assistance to him, except so far as they intervened or assisted in negotiating for a compromise with the bank. The wife visited Scott in London, and resided there with him. In that respect she did nothing to render her an accessory. Her husband was beyond the jurisdiction or reach of our tribunals; and further, the relation of wife to husband at common law exempted Mrs. Scott from liability as an accessory. Wharton, § 243. She also assisted in the negotiations for the settlement; but under the authority cited' no participation by any of those parties in that negotiation rendered the parties accessories.

Nor would the fact that they received part of the stolen property, knowing it to be stolen, if we assume that fact to exist, have such effect. Bishops Criminal Law, §§ 692, 695, 699. There was, therefore, nothing in the case to support the defendant’s claim that these witnesses were accomplices.

The corroboration of Scott as to the larceny was sufficient. Mrs. Scott testified that the defendant told her: Lizzie, if it hadn’t been for me he -wouldn’t have taken as ranch as he did, he would have gone off with a great deal less; and if he had taken my advice, he would have taken enough to cripple the bank.” This goes right to the point of the larceny, and not to the mere receipt of the stolen goods, which was abundantly proved by the testimony of the witnesses Searles and Cross, and the letters of the defendant.

The statement in the indictment of the property stolen was sufficient within the authorities (People v. Loop, 3 Park. 559; People v. Jackson, 8 Barb. 637); and the evi dence is sufficient to show that the certificates stolen were circulated as money at their nominal value.

The amendment of the corporate title of the bank was authorized by the Code of Criminal Procedure (sections 281, 293). This amendment did not affect the substance of the charge against the defendant. The owner of the property charged in the indictment, and the owner as proved on the trial, were the same. The amendment only corrected a misnomer, and therefore falls far within the decision of this court in the People v. Herman, 45 Hun, 175; 6 N. Y. Crim. Rep. 194.

Complaint is made of the following part of the charge of the court: “ The prosecution has, in the first place, given yon the evidence of Scott. He says that Dunn was concerned in the commission of the crime, and counseled it; and more, that after he, Scott, had taken the gold certificates, Dunn received them, knowingly, and acted as their guilty custodian. Of course, if that be true, there can be no doubt of Dunn’s criminal responsibility.” We find no exception to this part of the charge, and if there were such it would be untenable. When the learned judge said, “ If that be true, there can be no doubt of Dunn’s criminal responsibility,” he does not refer alone to Dunn’s receiving the stolen certificates, but to Scott’s whole statement that Dunn was concerned in the commission of the crime, and counseled it. In the light of the whole charge, it is not possible that the jury could have misconceived this statement.

We have thus examined the various rulings on this trial of which the defendant complains, and find that no error was committed. The evidence was ample to justify the defendant’s conviction, and the judgment appealed from should be affirmed.

Vah Bbott, P.J., concurs.  