
    The People, Resp’ts, v. James McHale, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Larceny—Indictment.
    An indictment charging that the defendant entered into an agreement with one H., the prosecutrix, to take and hold certain moneys, of which she was the owner, in trust for her, to be returned on demand, and having said moneys in his possession under the agreement, “did feloniously appropriate said moneys to the use of himself * * * with the intent then and there feloniously to deprive and defraud said H. of the same and of the use and benefit thereof," is sufficient under § 528 of the Penal Code.
    2. Same—Evidence.
    Evidence of prosecutrix that defendant told her to place the money in his charge and it would be safe; that she did so; that he refused to pay the same to her on demand, saying that it was spent, with evidence that defendant was insolvent and had wrongfully appropriated the money, is sufficient to sustain a verdict of guilty.
    3. Same—Defense.
    The fact that the prosecutrix was anxious lest the poor authorities should learn that she owned this money was no defense.
    4. Criminal law—Arraignment.
    At the close of the trial defendant’s counsel interposed the objection that defendant had not been arraigned or plead. Deld, that the court properly allowed him to be arraigned at that time and directed a plea of not guilty to be entered.
    Appeal from a judgment of the court of sessions of Onondaga county, rendered upon a verdict of a jury in that court finding the defendant guilty of the crime of grand larceny in the first degree, for which he was sentenced to the state’s prison at Auburn for the term of six and a half years.
    The indictment charged as follows: “ The said James McHale, on the 81st day of October, 1889, at the city of Syracuse, in this county, entered into an agreement with one Elizabeth Heaney, whereby the said James McHale did promise and agree to. and with the said Elizabeth Heaney to have and hold and take in his possession, custody and control the certain moneys hereinafter described of and belonging to said Elizabeth Heaney, she being then and there the true owner thereof, in trust for and on account of said Elizabeth Heaney, and to deliver back and to return to said Elizabeth Heaney said moneys whenever she might demand the same of him, the said James McHale; and the said James McHale was then and there authorized by the said Elizabeth Heaney, by and in pursuance of said agreement with said Elizabeth Heaney, to hold and take possession, custody and control of said moneys of and belonging to said Elizabeth Heaney; and the said James McHale did then and there become and was the trustee and bailee of said Elizabeth Heaney; and the said James McHale, being then and there so authorized by agreement with said Elizabeth Heaney to hold and take such possession, custody and control as aforesaid of the said moneys of said Elizabeth Heaney, and being then and there the trustee and bailee of said Elizabeth Heaney as aforesaid, did then and there receive and have in his possession, custody and control, as such person so authorized by agreement with said Elizabeth Heaney as aforesaid, and as such trustee and bailee, eleven hundred and sixty dollars in money, lawful money of the United States, of the value of eleven hundred and sixty dollars, a more particular description of which said moneys the grand jury is here unable to give, of the money of said Elizabeth Heaney, then and there the true owner thereof. And the said James McHale, on the day aforesaid, and at the place aforesaid, so having in his possession, custody, and control as such trustee authorized by agreement, as aforesaid, to hold and take such possession, custody and control, and as such bailee and trustee of said Elizabeth Heaney as aforesaid, said money of said Elizabeth Heaney, of the value aforesaid, did feloniously appropriate the said money of Elizabeth Heaney, of the value aforesaid, to the use of himself, the said James McHale, with the intent then and there feloniously to deprive and defraud the said Elizabeth Heaney of the same and of the use and benefit thereof. And so the grand jury do say that on the day aforesaid, at the place aforesaid, the said James McHale did feloniously steal eleven hundred and sixty dollars in money, lawful money of the United States, of the value of eleven hundred and sixty dollars, of the moneys of said Elizabeth Heaney, then and there the true owner thereof, against the form of the statute in such case made and provided, and against the peace oj: the people of the state of Hew York and their dignity.”
    
      Frank Hopkins, for app’lt; T. E. Hancock, dist.- att’y, and B. J. Shove, ass’t dist.-att’y, for People, resp’ts.
   Hardin, P. J.

—We ate of the opinion that the allegations found in the indictment are entirely sufficient to bring the case within the provisions of § 528 of the Penal Code. The People v. Dunn, 53 Hun, 381; 25 N. Y. State Rep., 460; The People v. Willett, 102 N. Y., 251; 1 N. Y. State Rep., 384; The People v. Dumar, 106 N. Y., 502; 11 N. Y. State Rep., 19. In that section it is provided as follows: “A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either (1) takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing, or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of any kind; or (2) having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof; steals such property and is guilty of larceny.”

(2) We are of the opinion that the evidence given upon the trial was sufficient to support the allegations of the indictment and that the verdict of the jury is sustained by the evidence. While there was a conflict in the evidence, and it may be conceded that if the jury had believed the testimony of the defendant and his witnesses a different result might have been reached, yet as the evidence stood it was for the jury to determine which of the witnesses told the truth, and as the verdict is supported by the evidence we are not inclined to interfere with it.

The prosecutrix in the course of her testimony, among other things, said, that the defendant “ told me to place the money in his charge and it would be all secure and safe and on hand when wanted; that he was worth double that amount of money and that he would act as trustee. I came back there the following day with my money and gave it to him and he counted it out and then took the money and went off and afterwards returned.” She also testified that she never said to the defendant “ that he might use this money.”

In the course of the conversation held with the defendant by an attorney employed by the prosecutrix to demand the money of the defendant, the defendant stated: “ The money is spent and I cannot pay it back and that is all there is of it; I have not got it and she cannot get it; ” again it appears that he said on one occasion “ He wouldn’t pay it over; he had the money and he wouldn’t pay it; ” and being further pressed by the attorney for the money in behalf of the prosecutrix, the defendant said: “ You may go to hell and get it; you don’t get it from me.” There was evidence given tending to show the defendant was insolvent and that he had wrongfully appropriated the money of the complainant.

(3) We are of the opinion that the circumstances indicating that the complainant showed some anxiety lest the poor authorities of the city of Syracuse should learn that she was the owner of the money furnish no defense to the defendant. Whatever the prosecutrix, anxieties may have been upon that subject the defendant was not thereby authorized to steal and retain her money or justified in the crime when charged therewith.

Our attention is called to Leonard v. Poole, 114 N. Y., 371; 23 N. Y. State Rep., 753, by the counsel for the appellant. We think the case does not aid his contention. That was an action by one co-conspirator to recover of another, and it was said: “The courts will not interfere in favor of any one of the parties to give him redress for frauds perpetrated upon another to his detriment in carrying out the unlawful enterprise; ” and that an action to compel one to account would not be maintainable.

(4) After the evidence was closed the defendant submitted a motion to dismiss the indictment, and the motion was denied. Thereupon the counsel for the defendant stated: “ I also observe, I only just observed it, or I suppose I should have spoken of it before, that the indictment does not show that Mr. McHale has been arraigned and plead; and it does not appear that he has been arraigned and pleadthereupon the district attorney remarked: “We will arraign him now,” and a further statement was made to the effect “that the defendant has been in court for the last two or three days, that the counsel has been acquainted with the indictment, and had plenty of opportunity. That he has been here with counsel and had plenty of opportunity to see the indictment and read it, and further that the contents of the indictment, and its different counts, were stated at the beginning of the case by counsel, and that no objection has been raised by the counsel until the close of the case;” and thereupon the district attorney asked the court to “ enter a plea of not guilty upon the record;” to that the court responded, viz.: “ I think he may be arraigned now; we have done that repeatedly ;” thereupon the defendant's counsel took an exception to the procedure. It is insisted by the counsel for the defendant “ that it was error to arraign the defendant against his objection after the close of the evidence.” By § 333 of the Code of Criminal Procedure it is provided that every plea must be oral and must be entered upon the minutes of the court. There is nothing in that section prescribing the time when the plea shall be entered. Section 334 of the Code of Criminal Procedure prescribes the form of a plea in case the defendant pleads not guilty, which shall be by use of the phrase, “ the defendant pleads not guilty ” (subd. 3 of § 334); and § 338 of the Code of Criminal Procedure provides that: “ The plea of not guilty is "a denial of every material allegation in the indictment;” and § 339 provides, “ All matters of fact, tending to establish a defense, other than that specified in the third subdivision of § 332, may be given in evidence under the plea of not guilty;" and then § 342 provides that if the defendant refuse to answer an indictment by demurrer or plea, a plea of not guilty must be entered.

It is apparent from the record that the defendant was permitted to give all the evidence and to make all the motions and use all the objections for a defense upon the trial before he called attention to the circumstance that there had been no formal arraignment which he could have availed of if the former plea of not guilty had been entered ; we are, therefore, unable to see that he suffered any by the delay in entering the plea of not guilty. We think a case is presented where the provisions of § 285 of the Code of Criminal Procedure should be applied, which declares “nor can the trial, judgment or other proceedings thereon be affected by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

In People v. Williams, 18 N. Y. State Rep., 405, it was held that this section was intended to cure defect's in form under the general rules of pleadings. See, also, People v. Peck, 2 N. Y. Crim., 317.

In Pierson v. The People, 79 N. Y., 424, it was held that a prisoner might waive any irregularity which existed in the case. In the course of the opinion in that.case are found words which we think are applicable here: “ If, therefore, there was any irregularity which would be ground of error, it was merely formal, affecting no public interest, trenching upon no public policy ; and to hold that it could not be waived would be without precedent and against reason." This case was referred to approvingly in Wainman v. Hampton, 110 N. Y., 432; 18 N. Y. State Rep., 320.

The language used by the court in People v. Osterhout, 34 Hun, 262, is also applicable, to wit: “ especially in a case where the prisoner appears with his own counsel, the omission formally to arraign and to ask for a plea is immaterial to his rights and may be deemed to be waived.”

We see nothing in The People v. Bradner, 107 N. Y., 1; 10 N. Y. State Rep., 667, cited by the counsel for the appellant, which aids his contention. In that case it was held : “A formal plea of not guilty, however, is not necessary to put the defendant on trial; a demand of trial by him is equivalent to such a plea.”

We fail to see that the defendant has been deprived of any right. Apparently he acquiesced in proceeding to trial before a jury on the indictment, and presumably he was aware, during the whole progress of the trial, that a formal plea had not been entered; and from the circumstances disclosed by the record we are of the opinion that the entry at the close of the evidence of his plea of not guilty was proper,'and that no prejudicial error of which he can avail appears by reason of the delay in the entry of such plea. Gibson v. The People, 5 Hun, 543, and cases cited. We are of the opinion that the verdict should be allowed to stand.

Judgment of conviction of the court of sessions of Onondaga county affirmed, and proceedings remitted to that court.

Martin and Merwin, JJ., concur.  