
    The People of the State of New York, Appellant, v. Eugene E. McClure, Respondent.
    1. Evidence — Receiving Stolen Goods. The admission, on the trial of an indictment for receiving certain stolen goods knowing them to have "been stolen, of evidence of the receiving of other goods by the defendant, does not constitute error where such evidence tends to identify the goods covered by the indictment, and it appears that the proof in reference thereto justified the inference by the jury that all the goods were taken from the same place, by the same person, at the same time, and were received by the defendant from the same person at the same time.
    2. Verdict—Receiving Stolen Goods—Guilty Knowledge. The minutes of the trial of an indictment, which charged the receiving of stolen goods with guilty knowledge, stated that the jury on coming into court, after deliberation, “say that they find the prisoner guilty of receiving stolen goods.” The record showed that sentence was thereafter rendered by the court. The minutes also stated that the defendant was arraigned “on the indictment against him for receiving stolen goods,” and that a plea of not guilty was entered “ to said indictment.” The bill of exceptions made by the defendant stated that the jury rendered “a general verdict of guilty.” Held (O’Brien, J., dissenting), that, considering the minutes and their reference to the indictment under which the conviction was had, and the express statement in the bill of exceptions that the jury rendered a general verdict of guilty, the record showed a conviction for the offense charged in the indictment, namely, the receiving of stolen goods with guilty knowledge.
    
      People v. McClure (88 Hun, 505), reversed.
    (Argued December 10, 1895;
    decided December 19, 1895.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered July 9, 1895, which reversed for errors of law only a judgment of the Court of Sessions of Rensselaer county convicting the defendant of having received stolen goods.
    The indictment accused the defendant, Eugene McClure, of the crime of receiving stolen goods, and stated that the defendant “ did feloniously receive and have ” the goods described therein “ then and there well knowing the said goods, chattels and personal property to have been feloniously stolen, taken and carried away.”
    The minutes of the trial court, as set forth in the record on appeal, contained the following entries: “ The prisoner, Eugene McClure, having been arraigned on the indictment against him for receiving stolen goods, refused to plead thereto. Ordered by the court that a plea of not guilty be entered to said indictment. On motion of the district attorney it is ordered by the court that a jury be empanelled and the prisoner, Eugene McClure, be tried on the indictment on file against him for receiving stolen goods. * * * The jury retired to deliberate and upon coming into court say that they find the prisoner, Eugene McClure, guilty of receiving stolen goods.” ' The minutes further stated that the defendant’s counsel moved to set aside the verdict and for a new trial on the minutes and for the arrest of judgment, and that such motions were denied, and that the defendant was given time in which to make and serve a bill of exceptions.
    The bill of exceptions, made by the defendant, contains the following statement: “ The jury retired and, after due deliberation, rendered a general verdict of guilty, after which the defendant’s attorney made application to the court for a new trial.” After setting forth the motion for a new trial, and also a motion in arrest of judgment, and stating that both were denied, the bill of exceptions states that “ the court proceeded to pronounce sentence upon the defendant: That he be confined in the Olinton prison at Dannemora for a term of five years.”
    Further facts are stated in the opinion.
    
      John P. Kelly for appellant.
    Upon the trial the People were allowed to prove, under the objections of the defendant, that the defendant had received and had in his possession at the time the goods covered by the indictment were recovered, the balance of merchandise stolen from the same car, at the same time, and presumably by the same person. This evidence was admissible. (1 Greenl. on Ev. § 53; Bielschofsky v. People, 3 Hun, 40; People v. Wood, 3 Park. Cr. Rep. 681; Wyman v. People, 4 Hun, 511; People v. Lyon, 1 N. Y. Crim. Rep. 400; People v. Haver, 4 N. Y. Crim. Rep. 171; Coleman v. People, 55 N. Y. 91; 58 N. Y. 555, 560; Copperman v. People, 56 N. Y. 591; People v. Downing, 84 N. Y. 486; People v. Gibbs, 93 N. Y. 473; People v. Harris, 136 N. Y. 423; Penal Code, §§ 528, 550.) The General Term having exercised its discretion and refused the defendant a new trial upon the facts; but having reversed his conviction for errors of law only, the verdict of the jury will not be interfered with by this court unless rendered entirely without evidence to support it. (People v. Cignarale, 110 N. Y. 26, 27; Code Crim. Pro. § 528.)
    
      
      R. A. Parmenter for respondent.
    It was not proper to show that the defendant received other goods from other persons. (Coleman v. People, 55 N. Y. 82; 58 N. Y. 561; Vandervoort v. Gould, 36 N. Y. 639; People v. Gonzalez, 35 N. Y. 49; People v. Dowling, 84 N. Y. 486; Copperman v. People, 56 N. Y. 591; Mayer v. People, 80 N. Y. 364; Stokes v. People, 53 N. Y. 176; Cohne v. People, 5 Park. Cr. Rep. 330.)
   O’Brien, J.

The indictment in this case charged the defendant with having received certain stolen goods, knowing them to be stolen. The goods were described as- cigars, cigarettes and packages of tobacco of certain brands. The proof tended to show that this property was stolen from a railroad car while in transit to certain consignees. In the same car were certain dry goods owned by other persons and consigned to other parties. The proof tended to show that these dry goods were stolen from the same car at the same time and by the same person and delivered to the defendant. Both classes of goods were found in the defendant’s possession. The learned General Term reversed the conviction on the ground that it was incompetent, on a trial of defendant upon the charge of receiving'the stolen tobacco and cigars, knowing them to be stolen, to give proof of receiving the stolen dry goods from some other person and at some other time, knowing them to be stolen. That it was improper upon the trial of a party for oné offense to give proof that he was guilty of another offense having no connection with the offense on trial. We would have no difficulty in agreeing with the learned General Term with respect to the general principle. We are unable to see, however, that the rule has any application to this case. It was difficult, if not impossible, to separate the transaction. All the goods were in the same car, and the circumstances were such that the jury had the right to find or infer that all were taken therefrom by the same person. All of them were found in the defendant’s possession and when found the defendant had a long conversation with the police in regard to the matter which ended in his restoring all the goods to the railroad. The defendant’s admissions proved by the police were of such a character as to warrant a finding that the defendant received all the goods at the same time and from the same person. It is true that the defendant when on the stand as a witness gave testimony tending to show that the dry goods were received by him at another time and from another person, but this was not conclusive. The jury had a right to consider the defendant’s admissions at the time of the discovery of the goods and were not necessarily bound by the subsequent narrative. So that the case did not fall within the rule referred to by the learned court below. The People were bound to identify by proof the pails and packages of tobacco found in defendant’s possession as that stolen from the car, and if they could show that other goods contained in the same package with the cigars were found in the defendant’s possession, after the theft, that fact would aid in the identification of the cigars and tobacco. A perfect identification of the dry goods would help an imperfect identification of the other goods, since they were all taken from the same car and were found in the same place. So that this was not the case of receiving other goods at other times and from other persons, hut the proof was sufficient for the consideration of the jury and the .inference could fairly be drawn that the defendant received all the goods from the same person at the same time, though his own testimony was to the contrary.

But, while disagreeing with the learned General Term in this respect, still I think the judgment was properly reversed for the reason that the record does not show that the defendant was ever legally convicted or sentenced, but does show the contrary. By § 436 of the Code of Criminal Procedure, the jury in a criminal case may either render a general verdict, or where they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict. The next two sections define a general verdict to he “ guilty ” or not guilty,” and a special verdict to be that by which the jury find the facts only, leaving the judgment to the court. It must contain the conclusions of fact established by the evidence to the satisfaction of the jury and not the evidence to prove them. The next section provides that the special verdict must be reduced to writing in the presence of the jury and agreed to by them before they are discharged and entered in the minutes of the court. The-case before us contains these minutes certified by the clerk,, and from them it appears that the jury came into court and delivered the verdict “ that they find the prisoner, Eugene-McClure, guilty of receiving stolen goods.” The four sections, following provide for a hearing by the court upon the special verdict, providing, among other things, that upon such hearing the defendant’s counsel shall have the right to close the argument. Section 443 provides that if the facts found by the jury are not sufficient to enable the court to judge whether or not the facts import a crime, then a new trial shall be granted. The object of these proceedings after the verdict is to obtain the judgment of the court upon the question whether the facts found do or do not import', the crime charged, and if they do not, then the defendant riiust be discharged. The verdict in this case being-special, no sentence could be pronounced until • further proceedings before the court,' and on these proceedings the-defendant must have been discharged, since the facts found do-not import any crime. The facts found constitute but one-element of the offense charged, as guilty knowledge that the goods had been stolen is the main ingredient of the crime.. In Miller v. People (25 Hun, 473) the jury returned the following verdict: “We find the prisoner guilty of receiving-stolen goods, knowing them to be stolen.” It was held that this was a special verdict which could not be enlarged byintendment or held to mean more than it expressed, and as it. was not found that he received them feloniously no crime-was found and the judgment of conviction was reversed. The. reasons for this result and the authorities cited in the opinion apply with full force to this case. We must take the verdict, in this case as it has been certified to us by the clerk whose duty it was to record it. It cannot be enlarged or changed by any admissions, verbal or written, which the defendant or his counsel made afterwards. When the defendant was sentenced to the state prison immediately afterwards the only authority that the court had to act upon was this verdict expressed in the very words quoted. When it was entered in the minutes of the court the defendant was at that moment convicted or not. If he was not then convicted lie could not be afterwards by admissions, however made. How it appears that long after this verdict was rendered, and after sentence passed, the defendant’s counsel made a bill of exceptions in which it is stated by way of recital of the proceedings that there was a general verdict of guilty. It was not necessary in the bill of exceptions to say anything whatever about the form of the verdict. It is perfectly manifest that this statement is nothing more than an erroneous construction by the counsel of the legal effect of the verdict as entered by the clerk, and to hold that such a statement changes or modifies the verdict as certified by the clerk whose duty it was to enter it, or is to be taken as importing verity against the plain terms of the court record seems to me utterly impossible.

But there is nothing in the case like a formal judgment record. The only judgment that appears is the sentence of the court. In Messner v. People (45 N. Y. 1) this court reversed a conviction in a criminal case where the record failed to show that the prisoner before sentence was asked by the court what he had to say why judgment should not be pronounced against him. This was said to be a substantial right and one of the safeguards which the law gave to the accused, and it was followed in many subsequent cases. (Graham v. People, 63 Barb. 468.) When the legislature came to codify the criminal law, so important did this right seem to them, that it was provided, in section 480 of the Code of Criminal Procedure, that when the defendant appears for judgment he must be asked by the clerk whether he have any legal cause to show why judgment should not be pronounced against him. In this case the importance of observing that provision is obvious. If it had been complied with the defendant would then have an opportunity to call-the. attention of the court to the form of the verdict and the necessity of further legal proceedings thereon before judgment could be pronounced, and that was the first opportunity that he had to raise the question after the entry of the verdict. If the sentence is to be deemed a judgment this question remains, for no where in the record before us does it appear that the defendant had the benefit of this legal right. Before a person can be deprived of life or liberty the People are bound to show that every provision of law intended for his benefit or safety has been complied with. The Code also provides what the defendant may show when so asked, in arrest of judgment or otherwise, and it is only after it appears that he has nothing to allege in that regard that the court is permitted to pronounce judgment. For these reasons I think the General Term properly reversed the conviction.

But my brethren do not concur in this last view, but hold that, considering the minutes and their reference to the indictment under which the conviction Avas had, and the express statement in the bill of exceptions that the jury rendered a general verdict of guilty, this record sIioavs a conviction for the .offense charged in the indictment, namely, the receiving of stolen goods with guilty knoAvledge.

This necessarily leads to a reversal of the judgment of the General Term and an affirmance of the conviction.

All concur, except O’Brien, J., who dissents from result.

Judgment accordingly.  