
    The People of the State of New York, Appellant, v. Charles H. Laurence, Respondent.
    (Argued March 16, 1893;
    decided March 24, 1893.)
    To constitute a larceny, as that offense is defined by the Penal Code (§ 538), or at common law, it is not essential that the property should have been taken from the possession of the owner by a trespass; it is sufficient if possession is obtained by some device, trick, artifice, fraud, or false pretense, with intent on the part of the person so obtaining it to appropriate it to his own use, and if he does so appropriate it.
    Surplusage does not vitiate an indictment, and it is not a legal ground for an attack upon it that it contains more than is necessary.
    The indictment herein alleged in substance that defendant “to deprive and defraud,” the L. S. R R Co. of two horse cars, and to appropriate them to his own use, “ did * * * feloniously and fraudulently pretend and represent ” that if said company would permit him to take said cars he would have them transformed so that they could be run by electricity, and would return them to it; that said company believing these representations and being deceived and induced thereby, delivered said cars to him, whereas said defendant did not intend to and did not have said cars so transformed, and returned, but sold them and converted the proceeds, and that defendant “by means of the false pretences and representations so made as aforesaid feloniously did steal, take, and carry away the said cars. Held, that under the rules of pleading in criminal actions as established by the Code of Criminal Procedure (§§ 373, 275, 284, 542, 684) the indictment sufficiently charged a larceny.
    
      It seems, it would have been sufficient if the indictment, without setting forth the false pretense, had charged larceny in the form used in common-law indictments.
    Where upon appeal from a judgment of conviction in a criminal action, the General Term reversed the conviction, and discharged the defendant on the ground of the insufficiency of the indictment, held, that a decision of this court that the indictment was sufficient and a reversal of the General Term judgment on that ground did not authorize an affirmance here of th.e conviction; that defendant had the right to a review by the General Term upon the evidence, and the case should be remanded to that court for a further hearing.
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 18, 1893, which reversed a judgment of the Court of Sessions of Niagara county, entered upon a verdict convicting defendant of the crime of grand larceny in the first degree.
    
      The defendant was brought to trial upon the following indictment:
    “ The grand jury of the county of Niagara, by this indictment, accuses Charles H. Laurence of the crime of grand larceny in the first degree, coimnitted as follows:
    “ That the said Charles H. Laurence, on or about the 10th day of August, in the year of our Lord one thousand eight hundred and ninety-one,, at the city of Lockport, within the county of Niagara, with force and arms, with intent to deprive and defraud the Lockport Street Railroad Company, a corporation duly organized and existing under and by virtue of the laws of the state of New York, of the proper goods and chattels hereinafter mentioned, and of the use and benefit thereof, and to appropriate the same to the use and benefit of him, the said Charles H. Laurence, did then and there, feloniously," falsely and fraudulently pretend and represent to the said Lockport Street Railroad Company, if the said Lockport Street Railroad Company would permit him, the said Charles H. Laurence, to ship to Buffalo two of the horse cars, numbered respectively seven (7) and eight (8) of the said Lockport Street Railroad Company, that he, the said Charles H. Laurence, would have the said two horse cars so transformed that they might be run by electricity as a motive power instead of by horse power and return the said two cars so transformed to the barn of the said Lockport Street Railroad Company in Lockport, with all possible speed, and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company before the first of January, 1892, and the said Lockport Street Railroad Company then and there believing the said false pretenses and representations so made as aforesaid by the said Charles H. Laurence, and being deceived thereby, was induced by reason of the false pretenses and representations so made as aforesaid to deliver, and did “then and there deliver to the said Charles H. Laurence the said two horse cars, numbered respectively seven (7) and eight (8) of the said Lockport Street Railroad Company of the proper goods, chattels and personal property of the said Lockport Street Railroad Company, and the said Charles H. Laurence did then and there feloniously receive and obtain ¿he said proper goods, chattels and personal property of the said Loekport Street Bailroad Company by means of the false pretenses and representations as aforesaid, with intent to deprive and defraud the said Loekport Street Bail-road Company, feloniously, and of the use and benefit thereof and to appropriate the same to his own use.
    i£ Whereas, in truth and fact, the said Charles H. Laurence did not then, nor at any time, ship to Buffalo the said two horse cars, numbered respectively seven (7) and eight (8), to be transformed so that they might be run by electricity as a motive power instead of by horse power, and did not intend to have the said two horse cars so transformed and did not return and intend to return the said two horse cars so transformed to the barn of the said Loekport Street Bailroad Company, in the said city of Loekport, with all possible speed and fit and ready to be used upon the tracks of the said Lock-port Street Bailroad Company before the first day of January, 1892, and has never since returned the said cars to the Lock-port Street Bailroad Company, but sold the said two horse cars and apnropriated the proceeds thereof to his own use and benefit.
    “ And whereas, in truth and in fact, the pretenses and representations so made as aforesaid by the said Charles H. Laurence, to the said Loekport Street Bailroad Company, were then and there in all respects utterly false and untrue, as he, the said Charles H. Laurence, at the tune of making the same, then and there, well knew.
    “ And the said Charles H. Laurence, on the day and in the year aforesaid, at the city of Loekport, within the said county of Niagara, aforesaid, in the manner and form aforesaid, and by the means aforesaid, obtained from the possession of the owner thereof, the said Loekport Street Bailroad Company, the said two horse-cars, numbered respectively seven (7) and eight (8), of the worth and value of three hundred and seventy-five dollars each car, with intent to deprive and defraud the true owner, the said Loekport Street Bailroad Company, of its property, and of the use and benefit thereof, and to appropriate to the use of him, the said Charles H. Laurence ; and the said two horse-cars, he, the said Charles H. Laurence, from the possession of the true owners thereof, the said Lock-port Street Bailroad Company, by means of the false pretenses and representations so made as aforesaid, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of Mew York and their dignity.
    “P. F. KIMG,
    “ District Attorney of Niagara County.”
    
    The defendant was convicted of larceny, and upon appeal to the General Term, the court reversed his conviction, and directed his discharge.
    
      P. F. King for appellant.
    The indictment alleges that the possession of the property was obtained by the defendant with felonious intent, and that after obtaining it in that manner he sold it and appropriated the proceeds. The possession was obtained for a certain purpose and the title to the property was not intended to be changed thereby. Clearly those acts constituted larceny at common law. (Smith v. People, 53 N. Y. 111; People v. Morse, 99 id. 502; People v. Gottschalk, 49 N. Y. S. R. 726; Loomis v. People, 67 N. Y. 323; Macino v. People, 12 Hun, 126; Weyman v. People, 4 id. 511.) The allegations in the indictment relating to false pretenses were properly set forth. (People v. Dumas, 106 N. Y. 502; People v. Stokes, 49 N. Y. S. R. 899; Crim. Code, § 275.) The indictment was sufficient. (Wharton’s Prec., Indct. and Pleas [2d ed.], 415; Code Crim Pro. § 284; People v. Farrell, 28 N. Y. S. R. 44; People v. Willett, 102 N. Y. 251; People v. Felly, 3 N. Y. Crim. Rep. 272; People v. Weldon, 107 N. Y. 574.) The allegations relating to false pretenses may be treated as surplusage and the other allegations in the indictment will be sufficient as a common-law indictment for larceny. (Abb. Crim. Br. 656; Dawson v. People, 25 N. Y. 399; Lohman v. People, 1 id. 379; People v. Jackson, 3 Hill, 94.) The indictment is sufficient where it charges a crime and gives a concise statement plain enough to apprise the defendant of the charge made against him. (People v. Dunn, 7 N. Y. Crim. Rep. 173; Code Crim. Pro. §§ 285, 684; People v. Willett, 102 N. Y. 251; People v. Williams, 18 N. Y. S. R. 405.) The failure of the company to fully comply with the statute under which it was incorporated will not justify defendant in stealing its property. (People v. Bennett, 49 N. Y. 144; Poole v. People, 80 id. 645; Murphy v. People, 4 Hun, 104; People v. Jones, 3 N. Y. Cr. Rep. 254; People v. Goodrich, 3 Park. Cr. Rep. 518; People v. Moudon, 4 N. Y. Cr. Rep. 119; People v. O'Neil, 6 id. 274; People v. Driscoll, 5 id. 551; People v. Cignarale, 6 id. 93.)
    
      Richard Crowley for respondent.
   Earl, J.

In the early history of English jurisprudence a prisoner came to his trial under great disadvantages. He was not permitted to have counsel, or witnesses, or a copy of the indictment; and hence very technical rules were evolved for the construction of indictments and the conduct of the trial, and thus a prisoner was now and then enabled to make a successful defense. But for many years more humane views of the condition and rights of persons charged with crime have come to prevail, and now a person indicted proceeds to his trial under greater advantages than he would possess if he. were defending a civil action. Hence, the technical rules which in ancient times frequently served a useful purpose have been greatly relaxed, indeed, almost entirely abrogated. By our Code of Criminal Procedure all forms of pleadings in criminal actions before existing were abolished, and the' sole requisite of an indictment, besides the formal parts, is that it shall contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.” (Code Crim. Pro. §§ 273, 275.) Ahd it is declared that the indictment is sufficient if the act or omission charged as the crime is plainly and concisely set forth and stated with such a degree of certainty as to enable the court to pronounce judginent upon a conviction according to the rights of the case. (§ 284.) To sweep away all mere technicalities it is provided in section 684, that “ neither a departure from the form or mode prescribed in this Code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right; ” and, then, in section 542, it is provided that after hearing the appeal from a judgment of conviction “the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

In all criminal proceedings the People as well as the defendants have rights, and the foregoing salutary rules should be fairly enforced and administered, so as to foster the public policy which they embody, and to serve the ends of criminal justice.

Larceny is defined in section 528 of the Penal Code so as to include not only that offense as constituted at common law and under the Revised Statutes, but also embezzlement, obtaining property by false pretences and the felonious breach of a trust. To constitute larceny it is not needful that the property stolen should have been taken from the possession of the Owner by a trespass. But if a person obtains possession of property from the owner for a special pmqoose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to his own use, and he subsequently does appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny; and so it has repeatedly been held. (Smith v. People, 53 N. Y. 111; Loomis v. People, 61 id. 322; People v. Morse, 99 id. 662.) La such a case it is essential for the People to show not only that the person obtained possession of the property in that way, but that he did it animo fwandi, with the intention at the time of subsequently appropriating it to his own use.

The People do not claim that the indictment shows a larceny by obtaining property by false pretenses, because the pretense's were in their nature promissory. But they claim that by certain false pretenses the defendant, intending at the time to appropriate the two cars to his own use, obtained possession of them from the owner for a special purpose, and that he did subsequently convert and appropriate them to his own use, and thus committed larceny. There can be no doubt that the facts thus claimed constitute larceny. The question for us to determine now is whether the indictment charges the crime of larceny in compliance with the requirements of the Code of Criminal Procedure ? It would have been sufficient if the indictment, without setting forth the false pretenses, had alleged the commission of the crime of larceny in the form formerly used in common-law indictments; and such was the form of the indictments in the cases above cited. The crime being properly charged in such an indictment, the facts constituting it could be proved upon the trial. (People v. Dumar, 106 N. Y. 502.)

A careful reading of this indictment leaves no doubt upon our minds that it does state the act constituting the crime. It charges that the defendant made the false representations and pretenses to obtain the possession of the cars from the owner for the special purpose alleged, with the intent at the time feloniously to deprive the owner of the cars and to appropriate them to his own use, and that after thus obtaining them he did appropriate them to his own use, and that by means of the false pretenses and representations alleged he did feloniously steal, take and carry away the two cars. These averments contain every element requisite to constitute the crime of larceny. In the opinion pronounced at the General Term it is intimated that the indictment would have been good “ if it anywhere charged the defendant with obtaining possession of the property by means of the alleged false pretenses, and, afterward with felonious intent, appropriating it to his own use.” It is very plain that the indictment does so charge. It is further stated in the opinion as follows: “ There is the charge that the defendant obtained possession of the property by the false pretenses and representations alleged; but this is coupled only with the charge that possession was thus obtained with the intent to appropriate it to his own use, and there is nowhere the allegation that after so obtaining the possession he did actually so appropriate it.” The learned General Term must have been under some misapprehension, because the indictment plainly charges that after the defendant hy the false pretenses and representations alleged, obtained the possession of the cars, he sold the said two cars and appropriated the proceeds thereof to his own use and benefit.” It is, therefore, impossible we think to say that the crime of larceny is not found in the language used in the indictment.

It is not a legal ground of attack upon this indictment that it contains more than was necessary under the provisions of the Code. It has always been the rule that surplusage no more vitiates an indictment than a pleading in a civil action. (Lohman v. People, 1 N. Y. 379; Dawson v. People, 25 id. 399.) While it was unnecessary for the People to set forth in the indictment the pretenses by which the defendant obtained possession of the property, the allegations in reference thereto instead of being harmful must have been beneficial to him, as they enabled him to know before the trial the precise facts upon which the People relied to prove the larceny. The indictment contains a plain statement of the acts constituting the crime without any repetition, and while it is not as concise as it might have been, yet so long as it is not so prolix as in any way to prejudice the defendant in making his defense, he cannot urge the prolixity as a ground for the reversal of the conviction.

We are, therefore, of opinion that this indictment, tested by the rules prescribed in the Code of Criminal Procedure, or by those which previously existed, was sufficient to authorize the conviction of the defendant for the crime of larceny; and that the General Term erred in reversing the conviction and discharging the defendant on the ground of the insufficiency of the indictment.

But it does not, however, follow that we should reverse the judgment of the General Term and affirm the conviction. We think there was some evidence for the consideration of the jury tending to establish the crime charged. We express no opinion as to the weight of the evidence as that is not within the province of this court. The defendant had the right to have his case reviewed upon the evidence, at the General Term, and that court, in the exercise of its discretion, could grant the defendant a new trial if it believed that the conviction ivas against the weight of evidence, or that justice required a new trial.

To the end, therefore, that the General Term may exercise its discretion upon the evidence, its judgment should be reversed and the case remanded to that court for a further hearing.

All concur.

Judgment reversed.  