
    George H. Manson v. The State of Ohio.
    1. Where a person is indicted for breaking and entering a railroad car, with intent to steal, and for the larceny of goods contained therein, and is aequitted.of the breaking and entering, and convicted of the larceny only, the judgment of the court will not be reversed, because of the admission, against the objection of the defendant, of evidence for the sole purpose of proving the breaking and entering, whether such evidence was properly admitted or.not.
    2. The fact that a person is in the employ of a railroad company, as brakeman on a freight train, does not-imply such control or possession of the goods being transported on such train, that he may not be convicted of the larceny thereof.
    ■ Motion for the allowance of a writ of error to the Court of Common Pleas of Stark county.
    At the November term, 1873, of the court, the plaintiff in error was indicted for breaking and entering a railroad car of the Pennsylvania Company, in the daytime, with intent to steal, and for stealing therefrom, goods and chattels of the company, of the value of fifteen dollars.
    On the trial, the state, to maintain the issue on its part, introduced witnesses, who gave evidence tending to prove the breaking and entering, and the larceny charged in the indictment; and also for the purpose of proving the breaking and entering charged, offered in evidence a properly certified transcript of the docket entries of the justice of the peace, before whom the preliminary examination of the plaintiff in error was had, which was admitted by the court, for the purpose named, against the objection of the plaintiff’ in error, who at the time excepted to the ruling of the court in that behalf.
    Lewis E. Angel, one of the witnesses produced and examined by the state, was in the employ of the company as a detective; was on the engine acting as fireman at the time the alleged offense was committed, and, upon his attention being called by the engineer to the movements of persons at the door of the car, went to it and found the plaintiff in error and two other persons in it, one of whom was opening the box from which the goods — “ ladies’ shoes ” — ■ charged to have been stolen were taken. After the box was opened, and while the plaintiff in error and the persons in the car with him were selecting shoes from the box, the witness, Angel, entered the car and examined the shoes, remarking, “ I want a pair, 4J, for Bergett’s wife.” He did not. find a pair of that size.
    Andrew Bergett was also introduced and examined by the state as a witness. He was the engineer of the train, and charged by the company with the additional duty of assisting the detective, Angel. He was at the door of the car after the box was opened, saw the plaintiff in error, Angel, and two other persons in it, and saw Frank Fecker, one of the parties found in the car by Angel, examining the shoes. Bergett returned to the engine, and, a few minutes after, the plaintiff in error came to the engine with two pairs of ladies’ shoes in his shirt-bosom.
    Evidence was also given by the state, that the car in which the alleged offense was committed was one of a train of the company’s cars ; that the plaintiff in error was in the employ of the company as a brakeman on that train ; that his duty, in addition to that indicated by his position, was to assist in loading and unloading freight at the stations on the -line of the road, under the direction of the conductor, who had the sole custody and control of the cars and their contents; that the plaintiff in error had no-authority to enter a freight car of the train, unless ordered so to do by the conductor; that the conductor did not order him to enter the car at the time and place of the commission of the alleged offense, and that the entry and taking of the goods was without his consent or knowledge.
    The plaintiff in error was examined as a witness in his own. behalf, and he also called a number of witnesses to-prove his good character, previous to the charge, who gave evidence tending to establish his good character for honesty.
    After the arguments of counsel were concluded, the plaintiff in error requested the court to instruct the j ury as follows:
    “ The crime of stealing is created and defined by sections-18 and 157 of the crimes act. By section 86 of said act it is made a distinct and independent offense for any person, assisting a common carrier for hire, in the transportation and carrying of any property or effects, to take any such-property or effects, and convert the same to his own use, without the consent of his employer, before the delivery of such property to the person entitled to receive the same. If, therefore, you find that the defendant did break or outer the car, and take the goods alleged in the indictment, and if you find that at the time the Pennsylvania-Company was a common carrier for hire, and that said goods-came into the possession of said company for transportation, and at the time were being transported by said company, and the defendant, at the time of the taking of said goods, was in the employ of said company, and aiding in their transportation by virtue of such employment, he would be guilty of a violation of the 86th section of said act, and not guilty of the crime of stealing. An acquittal under the present indictment would be no bar to a prosecution under the 86th section of said act. If you find that the-defendant did break and enter said car, and take the goods-alleged in the indictment, but that at the time of such-breaking and entering, and at the time of such taking, Angel and Bergett, or either of them, were present, aiding,, abetting, encouraging, or inciting said defendant to break and enter said car, and to take said goods, and that the said Angel and Bergett had' authority from the Pennsylvania. Company for their acts in the premises, the defendant would not be guilty of either offense charged in said indictment.. To find the defendant guilty of breaking, you must find beyond a reasonable doubt that said car was closed, and the door in some way fastened or secured before such entry.”
    The court refused to so instruct the jury, which was excepted to by the plaintiff' in error, and thereupon the court did instruct the jury :
    
      “ That if, at the time and place mentioned in the indictment, they should find, beyond a reasonable doubt, that the door of the car was closed, but not fastened, except by its own weight, and that if the defendant'opened it by the use of physical force, to such extent as to admit of his entering inte the car, without authority of the company, and not in the discharge of his duty as such brakeman, and then and there entered the car, with the intent to take and convert to his own use goods then and there in said car for the purpose of transportation, he would be guilty of the crime of breakIng and entering with intent to steal, as charged in the indictment ; and that if he did then and there take and carry .away any such goods, with intent to deprive said company thereof, and convert them to his own use, without the consent of his employer, he would be guilty of the crime of stealing, charged in the indictment."’
    To which charge, as given, the plaintiff in error also ex■cepted.
    The jury found the defendant guilty of the larceny only, and assessed the value of the goods stolen by him at the sum of fifteen dollars, whereupon the plaintiff in error moved to set aside the verdict, and for a new trial, on the grounds:
    “1. That the court erred in the admission of testimony to the jury; 2. That the court erred in charging the law to the jury; 3. That the court erred in refusing to instruct the jury as asked by the defendant on the law applicable to the case; 4. That the verdict is contrary to the law and the evidence;” — which motion was overruled by the court, ■and the ruling excepted to by the plaintiff in error.
    After sentence, the plaintiff in error gave notice of his intention to apply for a writ of error, whereupon the execution of the sentence was ordered by the court to be suspended, and he now asks this court for the allowance of the writ,upon the first three grounds set out in his motion for a new trial, and upon the additional ground “ that the Court of Common Pleas erred in overruling the motion of the plaintiff for a new trial, and other errors appearing in the record.”
    
      Aguila Wiley, for the motion:
    It is not larceny, for a person employed by a common -carrier for hire, to aid in the transportation of goods, to take such goods unlawfully, and without the assent of his employer, before delivery to the person entitled to receive the same. Such act constitutes a distinct and independent offense, and is not the crime of larceny or stealing. S. & C. 426, sec. 86; Commonwealth v. L. H. Tenny, 97 Mass. 51.
    
      If the defendant below was guilty of any offense, it was of the offense defined in section 86-of the crimes act above cited, and it is at least doubtful whether he could be tried under any other section of said act. 97 Mass., above cited.
    The acts assumed to have been proved, under our statutes, constitute but one offense, and that the offense defined by section 86 of the crimes act. William Champer v. The State, 14 Ohio St. 437; James B. Smith v. The State, 2 Ohio St. 511.
    The jury are the judges of the credibility of the witnesses. It can not be safely assumed that the transcript ■of the justice was not the basis of the verdict.
    
      Joseph J. Parker, prosecuting attorney, and Laubie $ Brooks, contra:
    That a servant may be convicted of larceny of the master’s goods, or of burglariously entering the master’s premises, is clear at common law, and our statute makes no distinction between a servant and other person. It is general, and embraces all persons.
    Where an act constitutes more than one offense, it is well settled that the state may prosecute on either; but that the prisoner may compel the state to prosecute him on one and not on the other, is novel to the law.
    Section 86 was designed to cover eases where the employe could not be convicted of larceny, and those cases are numerous where there is merely breach of trust by the servant.
    The admission of the transcript of the justice, whether erroneous or not, did the defendant no injury, as he was acquitted of the burglary
   Res, J.

The transcript of the entries made by the justice of the peace on his docket, at the preliminary examination of the charge against the plaintiff in error, which, it is claimed, was erroneously admitted in evidence on the trial, was offered by the state, and admitted by the court, for the sole purpose of proving the breaking and entering, charged in the indictment. The jury, by their finding’ and verdict, acquitted the plaintiff in error of that charge* and found him guilty of the larceny only; and hence, as he, was not prejudiced thereby, the question whether it was admissible or not, can not in any manner- affect the case as it now stands, nor furnish ground upon which a reviewing court can arrest the judgment on the verdict rendered-.

It is claimed that the court erred in. refusing to instruct, the jury as requested by the plaintiff in error. The requests that were not included in the charge given to the-jury assume that there was -evidence in the case tending to-prove: 1. That the plaintiff’in .error was intrusted with the custody, care, and control of the goods stolen, and employed in their transportation; and 2. That Angel and Bergett aided in and incited the plaintiff in error to the commission of the offenses charged in the indictment, and that the acts of these persons in the premises were done-under the authority and with the knowledge and consent of the Pennsylvania Company.

The evidence set out in the bill of exceptions does not sustain these assumptions. The fact proven by the state,, that he was a brakeman on the train in which the goods-stolen were being transported, does not necessarily imply that he was intrusted with their care, custody, or control*, or employed in their transportation. Neither do the facts-also proven by the state, that Angel, who was employed, on the train as a detective, and Bergett, who was directed by the company to assist him, were present and saw the-crime c'ommitted, necessarily imply the knowledge and consent of the company to the acts committed by the plaintiff in ei’ror. If the facts that the plaintiff in .error was employed in the transportation of the goods in question, or that Angel or Bergett aided in or incited the plaintiff in error to the commission of the offense charged, were relied on as a defense, they should have been shown affirmatively*, and will not be presumed in the absence of such evidence,

"W e are* therefore, of opinion that the court did not err in refusing to instruct the jury as requested by the plaintiff in error.

The instructions given by the court to the jury we find to be substantially correct, and we also find that the ver<dict is sustained by the evidence set out in the bill of exceptions.

We are, therefore, of opinion that the court did not err in overruling the motion of the plaintiff in error for a new ■trial.

Motion overruled.

Day, O. J., McIlvaine, Welch, and White, JT„ concurring.  