
    The People of the State of New York, Pl’ffs, v. Edward W. Rose, Def’t.
    
      (Superior Court of Buffalo, Criminal Term,
    
    
      Filed May 10, 1891.)
    
    Indictment—Several degrees oe crime charned—Construction.
    In an indictment, the first count charged the defendant with burglary-in the third degree, alleging that the offense was committed on a certain day, by entering a building in which was kept certain property belonging to B, with intent, feloniously, to take, steal and carry away such property. The second count charged the defendant with the commission of petit larceny, committed on the day and in the year aforesaid, with intent to defraud the true owner, took certain articles of personal property belong to B. The third count alleged the receiving of precisely similar property, knowing it to be stolen from B. Held, that the offenses alleged related to one and the same transaction, and were intended to charge but one offense.
    Demurrers filed to two indictments.
    
      G. T. Quinby, for the People; Armstrong & Witcher, for def’t
   Hatch, J.

—The defendant is arraigned upon two indictments, and files a demurrer to each. The first charges the defendant, in separate counts, with the crime of burglary, third degree, petit larceny, and receiving stolen property, respectively. The second charges the defendant with tne crime of burglary, third degree, and petit larceny, stated in separate counts.

The demurrers are alike in each case, and the grounds specified are, first, that more than one crime is charged; second, that the ■court in which the indictment was found had no jurisdiction of the crime alleged in the second count, and that this court is without jurisdiction to try the same. The third ground is like the second, except that it refers to the third count. The indictments were found in the court of oyer and terminer, and sent to this court for trial. No complaint is made but that the count alleging burglary is good in all respects; but the claim is that the court has no jurisdiction of the crime of petit larceny, and that said crime, as well as the count alleging the crime of receiving stolen property, is improperly joined with the count charging burglary. It is well settled that an indictment may embrace a count charging a felony, and also a count charging a misdemeanor, when the misdemeanor is a degree of the felony charged, or when the facts constituting the crime alleged arose out of the same transaction. People v. Emerson, 6 N. Y. Supp., 274; 25 N. Y. State Rep., 466; State v. Lincoln, 49 N. H., 464; Stevens v. State, 66 Md., 202.

It is equally well settled that counts charging burglary, larceny and receiving stolen property are properly joined in one indictment where the offenses, so alleged relate to the same transaction. People v. Baker, 3 Hill, 159; Hawker v. The People, 75 N. Y. 487.

It is no objection that such counts constitute different grades of offense and call for the imposition of different penalties. The •distinction made in pleadings of this character seems to be that when the offenses alleged are for different and independent felonies, then the joinder is bad, and an attempt to try in one indictment, for such separate offenses, will not be permitted; but where the different offenses charged in the separate- counts arose out of the same transaction, and are so charged, or from the allegations, it may be fairly inferred that it relates to but one offense, then the .allegations and different counts are to be treated as allegations calculated to meet defects in the evidence, and are properly joined. Taylor v. People, 12 Hun, 212 ; People v. Emerson, supra.

Sections 278 and 279 of Code of Criminal Procedure have not changed this rule of pleadings but continued it. People v. Callahan, 29 Hun, 580; People v. Infield, 1 Crim. R., 146.

It may be conceded that standing alone, as an independent offense, this court would have no jurisdiction to try a charge of petit larceny alleged as a first offense, but when it is coupled with-a count charging a crime of which the court has jurisdiction, and it is of a degree of such crime or arose out of the same transaction, then the court has jurisdiction to try, and the allegation is proper. It is, however, insisted that the allegations of this indictment do not show that the counts of petit larceny and receiving stolen property arose out of the same transaction. It is quite true that there are no words used showing that the two counts arose out of the same transaction and the pleading is fairly open to this criticism. The lack of such allegation is not to be commended and good pleading requires the insertion of words expressive of the fact. We are, therefore, relegated to the consideration whether, upon the face of the indictment, the allegations fairly show that it relates to the same transaction and constitutes really but one offense. The count charging burglary in the third degree alleges that the offense was committed in the county of Brie on the 28th day of December, 1890, by entering the building of Robert Hague, in which was kept certain property of Myron S. Bailen, with intent, feloniously, to take, steal and cany away such property. The second count charges the defendant with the commission of petit larceny committed “ on the day and in the year aforesaid * * * in the county of Brie ” with intent to "defraud the true owner, took certain articles of personal property belonging to Myron S. Bailen from the possession of Robert Hague. The third count alleges the receiving of precisely similar property, knowing it to be stolen on the .date and. in the county first alleged, being the property of and stolen from Myron S. Bailen. I think the fair inference arising from these allegations shows that the offenses alleged relate to one and the same transaction, and were intended to • charge but one offense; that the pleader, to meet any variance of proof, has made the allegations to that end. This is supported by the authorities. In People v. Callahan, 29 Hun, 580, Judge Smith said: “It is to be inferred from the identity of description, time and place, that the counts referred to are one and the same transaction.” If such inference appear with reasonable clearness it satisfies all the requirements. People v. Rose, 22 N. Y. State Rep., 390; People v. Crotty, 30 id., 44.

In California, where the section of the Code is similar to ours, the supreme court held, in a like case, that the identity of the transaction was sufficiently apparent where the second count of the indictment referred to the same time and gave the same names as to person and house. People v. Thompson, 28 Cal., 214.

These views lead to the conclusion that the demurrers must be overruled, and the defendant directed to plead to the indictment.  