
    People of the State of New York, Resp’t, v. Helen McCallam, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 7, 1886.)
    
    1. Criminal trial—Indictment for grand larceny—Evidence—When sufficient to warrant submission of case to jury.
    Where, on the trial of an indictment for grand larceny,, the proof established beyond a doubt that the crime of larceny had been committed, and there was evidence which pointed to the defendant as the guilty party, besides a variety of circumstances pointing to the defendant -as the perpetrator of the crime, it is for the jury to draw the inference as the case stands and determine the guilt or innocence of the accused.
    
      2. Same—Refusal of court to pass upon propositions of law— Charge to jury.
    It is not error for the trial court to refuse to pass upon propositions of law where there is no motion before it requiring its opinion upon such. abstract questions, and it is proper to withhold its decision in regard to them until all the testimony is introduced and the case is ready for submission to the jury. Where the charge as made fully covers all the facts elicited by the evidence, there is no rule under such circumstances which requires the court to present abstract theories which would not serve to elucidate or explain the case as presented by the testimony.
    8. Same—Proof of exclusive possession not necessary.
    It was not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant; and where there is no direct proof of an actual possession, but evidence of circumstances, which tends to show that the defendant took and had possession of the stolen property, it is for the jury to say whether the defendant was guilty of the offense charged; and the pr, position that no presumption of guilt can be raised from the possession of stolon ] roperty except where the possession is conscious and exclusive on the part of the defendant, is inapplicable. n
    
    4. Same—Statement—Confession—Code of Grim, Pro., § 395.
    Where the defendant made a statement to the constables having her in charge to the effect that certain tracks leading to the place where the stolen property was found were hers, and such statement being made after the officers had told the defendant that “ she might as well own up, as they had proof to convict her.” Held, that under section 395 of Code of Grim. Pro., it was admissible as a voluntary confession.
    5. Same—Charge to jury as to grade of offense.
    It was not error under the evidence for the court to charge the jury that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in the first degree; and if the property w7as of the value of more than twenty-five dollars, they might convict of grand larceny in the second degree; and if less than twenty-five dollars, the verdict might be for petit larceny.
    Appeal from a judgment of supreme court, general term, fourth department, affirming a judgment of the Jefferson county court of sessions on a conviction of grand ■larceny
    • Watson M. Rogers and F. N. Fitch, for app’lt; E. C. Emerson, dist. att’y, for the people.
    
      
       Affirmi g 35 Hun, 663, mem.
      
    
   Miller, J.

The defendant was indicted for the crime of grand larceny in the first degree, and convicted of grand larceny in the second degree.

There was sufficient evidence upon the trial to submit to the jury the question whether the defendant was guilty of the crime for which a conviction was had, and under the facts proved, the court was not authorized to .direct a verdict of acquittal. The proof established beyond question that the crime of larceny had been committed, and there was evidence which pointed to the defendant as the guilty party. There was also evidence showing that the defendant had been informed by the wife of Hennessey that the money stolen was in a trunk belonging to Hen- ■ néssey,:. and kept Under a lounge in his hou’sé. No person -had access to the place where the trunk was kept, from the time it was last seen there prior to its being taken, besides Hennessey and his wife, except the defendant. The defendant was there on the night when the larceny was committed for the purpose of obtaining a bedstead of Hennessey’s wife, as she stated; and while, at her request, Mrs. Hennessey went up-stairs to procure the bedstead, she was alone for a, period of fifteen minutes, during which time she had ample opportunity to -remove the trunk and its contents without being detected. She was thus in a position where she might have committed the crime alleged. Several gold coins of the same denomination, and bearing the same date as those stolen, were found concealed in the defendant’s wood-shed wrapped up in a newspaper, other portions of which were’ found in the defendant’s house. There was also evidence of some tracks of the defendant and her daughter, made as if engaged in carrying something, and which led to the place where the trunk was found, with its contents gone, excepting a few small silver coins. In regard to these tracks^ the defendant and her daughter gave testimony which was contradicted by other, evidence. The facts referred to, with other circumstances not necessary to enumerate, point to defendant as the perpetrator of the crime, and it cannot be said, we think, that no offense was made out against her. It was for the jury to draw the inference as the case stood; and to determine the guilt or innocence of the accused.

No error was committed by the court upon the trial' in refusing to hold, at that stage of the case, that upon a presumption that a larceny had been committed, no presumption can be founded that the defendant committed the crime, and that, as matter of law, no presumption of guilt can be raised from the possession of stolen property, except where the possession is conscious and exclusive on the papt of the defendant. The court clearly had a right to reserve the disposition of these questions until the entire testimony was in, and could not, in accordance with any well established practice, be required to indorse propositions before the case was finally closed.. No motion was, at that timé;' before the court requiring its opinion on the abstract queé: tians presented, and it was eminently proper to withhold its decision in regard to them until all the testimony was introduced, and the case was ready for submission to the coti> sideration of the jury. Any other course might lead to. confusion, and tend to embarrass the action of the court iff its final disposition of the questions involved.

. The same questions were raised in the requests made to charge, some twenty-seven in all, at the close of the case'.In regard to all of these it may be said that they embraced mostly abstract propositions which would tend to confu sé the case in the minds.of the jury, and not lead them to a correct result. ' _

_ The first'.proposition,. above cited, may properly be said to be strictly accurate, but its presentation, in the form adopted, was in no sense required for the protection of the rights of the accused. The charge, as made, fully covered all the facts elicited by the evidence; and there is no rule, under such circumstances, which demands that the court should deal in presenting abstract theories which would not serve to elucidate or explain the case as presented by the testimony. The correctness of' the proposition made would necessarily follow from the presentation made by the judge in his charge, of the evidence upon the trial, and the rules "applicable to the same. The effect of the entire charge was that the commission of the crime alleged did not, of itself, raise a presumption of the defendant’s guilt, and that evidence was essential to establish one’s guilt.

As to the second proposition it may be remarked that it was not strictly accurate. It was not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant, and such a rule only applies in a case where the evidence of guilt is the possession of the property stolen and it is to be presumed from that fact. The question whether such possession establishes guilt is-one for the jury.

In the case considered, where there was no direct proof of an actual possession but evidence of circumstances which tended to show that the defendant took and had possession of the money, it was for the jury to say whether she was guilty of the offense charged, and the proposition stated would seem to be inapplicable.

What has been already remarked generally as to the first proposition is also applicable to the second, as well as to the other requests made.

.The rule applicable to the requests made is stated in Caldwell v. N. J. Steamboat Co. 41 M. Y., 282, by Church, Ch. J., as follows: “If the charge as a whole conveyed to the jury the correct rule of law on a given question the judgment will not be reversed, although detached sentences may be erroneous; and if the language employed be capable of different constructions, that construction will be adopted which will lend to an affirmance of the judgment, unless it fairly appear that the jury were, or at least might have been misled.”

Having this rule in view we are unable- to discover any ground of error in any of the refusals to charge any of the requests made

Upon the trial a motion was made by the defendant’s counsel to strike out all the evidence given by one Kinney in regard to the admissions made by the defendant after certain statements made by the officer Guest to the defendant, and also all the evidence of one Champlin as to the admissions made by the defendant that certain tracks, testified to, were hers and her daughter’s, for the reason they were made under threats by the officers, and that she was told she might as well own up as they had proof to convict her.

A further motion was made to strike out all the evidence .given on the subject subsequent to the statement that there was evidence sufficient to convict the defendant. The court denied each of the motions and the defendant excepted separately to the rulings. It appears that three of the constables were at the defendant’s house to make a search for the money stolen, when they had the conversation with the defendant as already stated and after which she told them about the tracks.

The question arises m the first place whether the statement made by the defendant was in the nature of a confession to the effect that the defendant was guilty of or had any connection with the crime which had been committed within the meaning of section 395 of the Code of Criminal Procedure, which declares that c A confession of a defendant, whether in the course of judicial proceedings or to a private person, can he given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district-attorney that he shall not be prosecuted therefor.”

The evidence given by the defendant was a statement in regard to her action, so far as related to the tracks which had been found in the vicinity of the house where she lived.

Conceding that the declarations made by the defendant can be regarded as confessions, we think, under the testimony introduced, and under section 395 of the Criminal Code, supra, the evidence was competent.

No threat was employed by the officers which can be said to have induced the defendant to make any statement as to the alleged offense The assertion of the constable, that he had enough to convict her and that she might consider herself under arrest, did not, of itself constitute a threat which it can be claimed operated upon the mind of the accused, and caused her to make the declarations which she did.

In People v. Wentz (37 N Y., 304), the officer told the accused “he was in a bad fix, and had got caught at last.” The defendant then confessed his guilt, and it was held that there being no inducement, promise, threat or menace used to obtain the confession, or influence its being made, the evidence was properly admitted. It is not apparent that any distinction exists between the case cited and the one now before us. In both of them the statement was to the effect that the defendant had been detected in the commission of the crime alleged. The statement in each case was substantially alike, and the case cited is directly in point. There is nothing here which indicates that any threat was made, or that the declarations of the defendant were induced by fear. That they were untrue is of no consequence, so long as they were made by the accused as voluntary statements in lier own behalf.

The evidence of Champlin as to the declaration of Angelina Quinn was, we think, competent. The evidence showed that she was an accomplice in the commission of the crime charged, and she had already testified in regard -to the transaction. The evidence introduced tended to contradict her testimony, and was clearly admissible.

There was no error in the charge of the court to the jury, to the effect that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in in the first degree; and if the property taken was of the value of more than twenty-five dollars, they might convict of grand larceny in the second degree; and, if less than twenty-five dollars, the verdict might be for petit larceny.

The only evidence as to the amount of money lost was that of Hennessey, who swore on his direct examination that he lost $540. He was cross-examined at great length in regard to the amount of money that he had, and evidently with the view of showing that it was uncertain what amount of money in fact was in the trunk. If the amount was less than $500 and more than twenty-five dollars, then the crime was grand larceny in the second degree. Assuming' that the money in the trunk was not stolen, as twenty dollars in gold and $3.Y5 in silver quarters were found, and these, with the trunk and socks, made property over the value of twenty-five dollars, the crime of grand larceny in the second degree would be established by the evidence. The charge, as made, had a direct bearing upon this portion of the evidence; and if the jury believed that there was doubt as to the property taken amounting to over $500, they might properly have found the defendant guilty of a lesser degree than the first. Sor also, if the evidence was uncertain as to the taking of the-trunk, and the amount of money testified to by Hennessey, they might have convicted the defendant for the taking of the smaller amounts found, in whole or in part, and brought in a verdict of guilty of petit larceny. The crime charged was grand larceny; and, if the evidence established only petit larceny, there is no reason why a conviction should not be had for that offense.

- We have examined the other questions in the case, and find in none of them any ground of error which justifies a reversal of the judgment.

The conviction should be affirmed.

All concur, except Rapallo, J., not voting.  