
    People v. Dunn.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Larceny—Indictment—Variance.
    Pen. Code N. Y. § 528, defines “larceny” under two subdivisions: (1) One who takes property from the possession of the true owner, and appropriates it to his own use; (3) one who, having possession of property as servant, agent, clerk, etc., appropriates it to his own use. The indictment charged that defendant “did take, steal, and carry away ” certain gold certificates, the property of a bank. The evidence showed that the certificates were taken by a teller of the bank. Held, that there was no variance between the proof and the indictment.
    2. Same—Amendment.
    Code Grim. Froc. N. Y. § 281, provides that, where the crime alleged is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material. Section 293 provides that when a variance between the indictment and the proof, in respect to time, or in the name of any person, place, or thing, shall appear, the court may, in its judgment, if defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended. Held, that there was no error in allowing the indictment, which .alleged that the stolen property belonged to the “Bank of the Manhattan Company, ” to be amended so as to conform to the proof, which showed it belonged to the “President and Directors of the Manhattan Company. ”
    8. Same—Description of Property.
    Where the indictment alleges the stolen property to be gold certificates of the United States, of the value of 81,000 each, payable to bearer, and the proof shows the certificates to have circulated at their nominal value, the description and value of the property sufficiently appear.
    4. Same—Instructions.
    On trial of an indictment for larceny, the court instructed the jury as to the testimony of the principal witness for the prosecution, that “he says defendant was concerned in the commission of the crime, and counseled it, and that after he (witness) had taken the gold certificates defendant received them knowingly, and acted as their guilty custodian. Of course, if that be true, there can be no doubt of defendant’s criminal responsibility. ” Held, that there was no error in the charge, as the words, “if that be true, ” referred not alone to defendant’s receipt of the certificates, but to the whole statement of witness that defendant was concerned in the commission of the crime, and counseled it.
    5. Criminal Law—Evidence—Accomplices.
    Those who have aided the principal in a crime to elude punishment, but not to elude capture or to escape, are not accomplices, and are competent as witnesses to corroborate the testimony of the principal, when given against an accomplice.
    Appeal from court of oyer and terminer, Yew York county.
    The defendant, John B. Dunn, was indicted for grand larceny in the first degree with one Bichard S. Scott. The indictment alleged the taking, stealing, and carrying away of “one hundred and fifty written instruments and certificates of deposit, issued by and under the authority of the government of the United States, and called ‘ United States Gold Certificates,’ each certifying that there had been deposited in the treasury of the United States one thousand dollars in gold coin, repayable to the bearer of such instrument and certificate upon demand; the same being then and there wholly unsatisfied, and of the value of one thousand dollars each.” The proof was that the certificates were taken by Scott, who was a teller in the bank from which they were taken, and that defendant counseled and induced him to take them, and place them in defendant’s custody, and that they were thereafter appropriated to the use of defendant and Scott. The indictment further alleged that the certificates were the property “of a certain corporation known as the • Bank of the Manhattan Company.’” The proof showed them to be the property “of a certain corporation known as the ‘ President and Directors of the Manhattan
    
      Company.’” The court permitted the indictment to be amended as to the name of the owners of the property so as to conform to the proof. The proof as to the value of the property was that the certificates circulated at their nominal value. The principal witness against defendant was Scott, whose testimony was corroborated by that of his wife and two other witnesses, all of whom learned of the crime after Scott had gone beyond the jurisdiction of the United States, and all of whom counseled and assisted him in trying to effect a compromise with the bank. Defendant asked that the jury be instructed to acquit, which motion being denied, defendant appeals.
    Pen. Code 3\ Y. § 528, provides that a person is guilty of larceny “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 value of any kind, or (2) having in his possession, custody, or control, as bailee, servant, attorney, agent, clerk, trustee,, or officer of any person, association, or corporation, * * * any money, property, evidence of debt, or contract, article of value of any nature, or thing in action or possession, appropriates the same to Ins own use, or that of any other person other than the true owner or person entitled to the benefit thereof.” Code Crim. Proe. 3". Y. § 281, provides that, where the crime alleged is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured is not material Id. § 298, provides that when a variance between the allegation of the indictment and the proof, in respect to time, or in the name of any place, person, or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced on his defense on the merits, direct the indictment to be amended.
    Argued before Van Brunt. P. J., and Cullen, J.
    
      Silas M. Stilwell, for appellant. Wm. Travers Jerome, for the People.
   Cullen, J

The appellant was indicted with one Bichard 8. Scott for grand larceny in the first degree, for stealing 150 gold certificates of the United States, of the value of $1,000 each, the property of the Bank of the Manhattan Company. The evidence given upon the trial showed that the theft was committed by Scott, who at the time was paying teller of the bank; and evidence was given tending to show that the defendant, Dunn, counseled, induced, and procured the theft to be committed. Scott was used as a witness for the people. He testified, in substance, that having committed peculations from the bank to the extent of $10,000, which he was unable to restore, he applied to Dunn, a practicing lawyer, and a cousin of his wife, for advice; that Dunn advised him to take as large a sum from the bank as he could lay hold of, and then abscond to Canada, leaving, however, the funds to be stolen in the hands of some confidant in this state; that under the treaties Scott could not be extradited from Canada for simple theft; that by leaving the stolen property in this state he would avoid the penalties of the Canadian law, as to bringing stolen property within the Dominion, and that, with the funds so stolen, a compromise could subsequently he effected with the bank; that, in pursuance of such advice, he took front the bank the $150,000, gave the money to Dunn to keep for him, and absconded to Canada. Scott subsequently went front Canada to England. Dunn, from time to time, transmitted small sums from the stolen funds to Scott. While in England, negotiations were opened between Scott and the bank for the return of the stolen property. When Dunn was called upon for the stolen funds with which to effect the compromise, he failed to produce them, claiming that he had lost them in speculation. The theft from the bank was also proved by its cashier. The people sought to corroborate Scott by his wife and her brother and sister, who testified to conversation with and admissions on the part of Dunn, after the theft had been committed, and when negotiations were pending for the restoration of the stolen property. The defendant offered no evidence. A motion was made at the close of the testimony that the jury be instructed to acquit the defendant. This motion was denied. The defendant was convicted, and sentenced upon conviction.

The questions discussed on this appeal arise upon the denial of the motion to direct the jury to acquit. The first contention is that there was a variance between the proof and the indictment. The charge in the indictment was that the defendants “did take, steal, and carry away” the property therein mentioned. It is not disputed that the offense committed would have been larceny before the Penal Code, because the property stolen had been in the possession of the bank before it was abstracted by Scott. It was also made larceny by the Penal Code. But it is claimed that the offense should have been charged under the second subdivision of section 528 of the Penal Code; that is, as an appropriation to his own use by a clerk having property in his posession. This claim is made on the authority of People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325. There the defendant was charged with having “taken, stolen, and carried away” certain property. The evidence showed that he obtained the properly by false pretenses. It was held that the indictment did not state the offense which was proved against the defendant, and for the variance the conviction was reversed. While the Code makes embezzlement and obtaining goods under false pretenses larceny, it was held that under the Code of Criminal Procedure (sections 254, 275) the indictment must not only charge the crime, but state the act constituting the crime, and that the act stated as constituting a crime in the indictment was different from the act proved, and hence the variance. In the opinion delivered in that case the court, .indeed, does lay down the doctrine that larceny can now be committed in four separate ways, and that it was the intention of the legislature to abolish those refinements and distinctions which had so often perplexed the courts as to when an offense was larceny and when embezzlement. But there is nothing in the opinion which gives ground for the claim that when the legislature abolished the old distinctions between larceny, false pretenses, and embezzlement they intended to create a new classification of offenses, and raise the same difficulties as to determining between the various offenses as existed under the old practice. It is not necessary that an indictment should be drawn under one or the other of the special classes of larceny as defined by the Code. If so, there would be no improvement in the codification of this branch of the law; for instead of having three crimes, as formerly, to perplex the administration of justice, there would be now four. It is sufficient that the indictment charges the crime, and then gives a plain and concise statement of the act. It is sufficient if that statement be such as to fairly apprise the defendant of the charge made against him. All that was decided in People v. Dumar was that the act stated differed from the one proved. Xo such criticism could justly be made on the statement here. By the Code of Criminal Procedure, (section 282,) words are to be construed in their usual acceptation, in common language, except such as are defined by law, and those are to be construed according to their legal meaning. If the word “steal” is to be considered in its technical meaning, then its use was proper, because the act here committed was larceny at common law. If the words used are to be considered in their ordinary interpretation, in common language, then the terms employed were equally appropriate. By either rule, they fairly and fully informed the defendant of the charge which was made against him. We think that in a case similar to this, and under the system of pleading instituted by the Code, it is perfectly proper to charge the defendant with either having stolen the property, or as a clerk having appropriated it to his own use.

It is next claimed that there was no sufficient corroboration of Scott, because the witnesses Mrs. Scott, Mrs. Searles, and William Cross were accomplices or accessories after the fact, and that the court erred in charging the jury to the contrary. We think the ruling and charge of the court in this respect was correct. Assuming that an accessory after the fact is an accomplice within the meaning of the Code, it is clear that none of these witnesses were accessories. Mr. Bishop, in his work on Criminal Law, § 695, enunciates the rule that the true test for determining whether one is an accessory after the fact is to consider whether what lie did was done by way of personal help to his principal, with a view of enabling the principal to elude punishment. So, to furnish one with a horse to escape or to conceal or rescue the principal renders one an accessory, but not so the failing to make known the felony, forbearance to arrest, or charitably supplying the prisoner with food, or agreeing not to prosecute, or preventing the attendance of witnesses. To the same effect is Whart. Crim. Law, § 241. Under this rule, plainly none of these witnesses were accessories. In fact, the rule itself is stated too broadly by Mr. Bishop, as is shown by the cases cited by him, where it has been ruled that the prisoners were not accessories. To constitute an accessory, it is not sufficient to assist the prisoner to elude punishment, because failing to prosecute or preventing the attendance of witnesses would produce that result. But to constitute the offense one must.help the principal to elude or evade capture. None of the witnesses referred to were cognizant of the crime till long after its commission, and till the defendant was secure from capture by his escape to a foreign country. None except his wife rendered any aid or assistance to him, except so far as they intervened or assisted in negotiating for a compromise with the bank. The wife visited Scott in London, and resided there with him. In that respect she did nothing to render her an accessory. Her husband was beyond the jurisdiction or reach of our tribunals, and, further, the relation of wife to husband at common law exempted Mrs. Scott from liability as an accessory. Id. § 243. She also assisted in the negotiations tor the settlement, but under the authority cited no participation by any of those parties in that flegotiation rendered the parties accessories. Nor would the fact that they received part of the stolen property, knowing it to be stolen, if we assume that fact to exist, have such effect. 1 Bish. Grim. Law, §§ 692, 695, 699. There was therefore nothing in the case to support the defendant’s claim that these witnesses were accomplices. The corroboration of Scott as to the larceny was sufficient. Mrs. Scott testified that the defendant told her: “Lizzie, if it hadn’t been for me he wouldn’t have taken as much as he did,—he would have gone off with a great deal less; and if he had taken my advice he would have taken enough money to cripple the bank.” This goes right to the point of the larceny, and not to the mere receipt of the stolen goods, which was abundantly proved by the testimony of the witnesses Searles and Cross, and the letters of the defendant.

The statement in the indictment of the property stolen was sufficient, within the authorities, (People v. Loop, 3 Park. Crim. R. 559; People v. .Jackson, 8 Barb. 637;) and the evidence is sufficient to show that the certificates stolen were circulated as money at their nominal value.

The amendment of the corporate title of the bank was authorized by Code Crim. Proe. §§ 281, 293. This amendment did not affect the substance of the charge against the defendant. The owner of the property charged in the indictment and the owner as proved on the trial were the same. The amendment only corrected a misnomer, and therefore falls far within the decision of this court in People v. Herman, 45 Hun, 175. Complaint is made of the following part of the charge of the court: “The prosecution has, in the first place, given you the evidence of Scott. He says that Dunn was concerned in the commission of the crime, and counseled it; and, more, that after he (Scott) had taken the gold certificates Dunn received them knowingly, and acted as their guilty custodian. Of course, if that be true, there can be no doubt of Dunn’s criminal responsibility.” We find no exception to this part of the eliarge, and if there were such it would be untenable. When the learned judge said, “if that be true, there can be no doubt of Dunn’s criminal responsibility,” he does not refer alone to Dunn’s receiving the stolen certificates, but to Scott’s whole statement that Dunn was concerned in the commission of the crime, and counseled it. In the light of the whole charge, it is not possible that the jury could have misconceived this statement. We have thus examined the various rulings on this trial of which the defendant complains, and find that no error was committed.. The evidence was ample to justify the defendant’s conviction, and the judgment appealed from should be affirmed.  