People v. Green

1 Wheel. Cr. Cas. 152

• Court: New York Court of Common Pleas
• Decided: January 15, 1823
• Status: Published

Opinion

The court were of opinion, that he counsel for the prosecution ought to be confined in his proof to the charge as laid in the indictment.

'Maxwell consented, and proceeded in the examination 0f the witness. She testified, that she would not have stolen the goods, had she not been advised to it by the Prisoner i that she had stolen them at different times, but always at the request, and with the advice, and under the of the prisoners, and had, immediately after the taken the articles to Eliza Hays, who divided them with Martha and Mary Ann.

Price and Fay now took an exception to the indictment on another ground: they contended, that by the evidence now before the court, it clearly and satisfactorily appeared, that the prisoners were either guilty with the witness as principals, or accessaries; that by the testimony of the witness, the prisoners had directed and advised her to commit the felony ; that they had received, and for their use, all the articles stolen ; that an indictment for receiving stolen goods, 'knowing they were stolen, could not be supported, where, by the evidence it appeared that the party counselled and advised the act.

Maxwell replied, that he admitted the rule of law, as contended for by the counsel for the prisoner, but insisted that this case was not within the operation of the principle; that the-evidence did not support the principle taken for the prisoners ; that he held the law to be, that if one tells another to steal the goods of some third person, without specifying what particular kind of goods, he is not guilty of larceny, nor can he be proceeded against either as principal or accessary, but if the particular kind of goods be specified, he admitted it would be felony.

The court was of the same opinion, and intimated they would so charge the jury.

The counsel for the prisoners replied, that it appeared by the evidence, that the felony was committed by ...the express direction of one of the prisoners; that she liad'told Ann to steal certain goods, naming them ; that if it was a larceny in Ann, it was also a larceny in the prisoners ; that the misdemeanor of receiving stolen goods, knowing they were stolen, was merged in the felony; and that the defendants were found guilty on this indictment, they might be arraigned and tried on an indictment for larceny; and that, upon such arraignment, they could not plead autre fois acquit, but would be remediless. The counsel contended, that, by the evidence now before the-court, an indictment, either as principal or accessary to larceny, might be supported.

The Court observed, this was a second Croke’s case, where the counsel for the prisoners, in order to free their clients from 'the responsibility of a crime' were obliged to plead a higher one. The Court observed, that it was matter proper for the consideration of the jury; and, after recapitulating the facts of the case to the jury; left it for them to say whether, under all the circumstances, the prisoners were guilty or not guilty: observing, that if there was any weight in the objections raised by the counsel for the prisoners, they would have the ben'efit of it.

They were found guilty, and were sentenced to the Penitentiary for the term of three years.