Vann, J.
The indictments against Dr. Flower were records or documents filed in a public office under the authority of law. (Code Crim. Pro. § 272; Code Civ. Pro. § 866.) They were the property of the state and a willful and unlawful removal of them constituted a crime under section 94 of the Penal Code. Any one who unlawfully obtained or appropriated them was guilty of grand larceny in the second degree, according to the provisions of another section of the same statute. (Penal Code, § 531.) Whoever is guilty of violating either section may be convicted of an attempt to commit the offense specified therein, even if it appears on the trial that the crime was fully consummated, unless the court in its discretion discharges the jury and directs the defendant to be tried for the crime itself, which was not done in the case before us. (Code Crim. Pro. §§ 35 and 685.) The jury found the defendant guilty of an attempt both to remove and to steal the indictments, and after affirmance by the Appellate Division we are confined in our review to such questions as were raised by exceptions taken during the trial.
In view of the able and exhaustive opinion of the Appellate Division, the only question we feel called upon to consider is that raised by the challenge of the learned counsel for the appellant in the nature of a demurrer to the evidence. He claims that even on the assumption that ail the evidence for the prosecution is true, still the facts thus proved do not constitute the crime charged in either count of the indictment. His argument is that the object of-the district attorney was not to detect, but to create a crime, and that
no crime was committed by the defendant in talcing the indictments into his possession, because he took them with the consent of the state as represented by the district attorney.
The flaw in this argument is found in the fact that the records were the property of the state, not of the district attorney, and that the latter could not lawfully give them away or permit them to be taken by the defendant. Purity of intention only could prevent the. action of the district attorney from being a crime on his part. This is true also as to the detective, for if either had in fact intended that the defendant should permanently remove the indictments, and steal, appropriate or destroy them, he would have come within the statute. Neither of those officers represented the state in placing the records where the defendant could take them, but each was acting as an individual only. Neither had the right or power, as a public officer, to deliver them to the defendant, and if either had acted with an evil purpose, his act would have been criminal in character.
An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. (Penal Code, § 34.) Felonious intent alone is not enough, but there mvst be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause. In People v. Bush (4 Hill, 133) the prisoner solicited one Kinney to burn a barn, and gave him matches for the purpose, and it was held sufficient to warrant a conviction for attempt at arson, although the prisoner did not mean to be present at the commission of the offense, and Kinney did not intend to commit it. The furnishing of the matches was the overt act. If the defendant did anything with intent to steal the papers, which in the ordinary course of events, unless interfered with, would have resulted in the
theft thereof, it was an overt act. (People v. Sullivan, 173 N. Y. 122, 133.) Taking up the records, putting them in his pocket and walking away with them was an overt act, because it was done with the intent to remove and appropriate them, and would ordinarily result in carrying that intention into effect. It was a trespass to take the indictments into his possession under the circumstances, for he did it, as the jury found, with the intention of stealing them. It was not necessary that the trespass should be accompanied with violence, as it was enough for him to secure the physical custody of the papers and have it in his power to take them away and appropriate them, the same as if he had picked them up in the clerk’s office. No more force would be required in the case supposed than in the case proved. The touch of a pickpocket is so light that it cannot be felt, yet the force is sufficient to constitute a trespass and an attempt to commit a crime, even if there is nothing in the pocket to steal. (People v. Moran, 123 N. Y. 254.) As was. said by the court in a late case : “It is now the established law, both in England and in this country, that the crime of attempting to commit larceny may be committed, although there was no property to steal, and thus the full crime of larceny could not have been committed. ” (People v. Gardner, 144 N. Y. 119, 125, and cases cited.)
Knowing that he had no right to the indictments, and that the officers had no right to let him have them, when the defendant picked them up from the table and put them in his pocket animo furandi, the law presumes that the act was done vi et armis, for the amount of violence is not important. He removed the papers from the control of the real owner and had them in his own control, so that the state could not have recovered possession without his consent or by forcibly taking them away from him, which was in fact done. The detective could only get them back if he and his assistants were strong enough, unless the defendant
voluntarily gave them up. He had the same control of them that he had of his own pocket book, for both were in his pocket and neither could be taken from him except by the use of force. Temporary possession, though but for a moment, by one who intends to steal is enough, and possession “is the having or holding or detention of property in one’s power or command.” (Harrison v. People, 50 N. Y. 518.) As was said by Judge Folger in the case cited, quoting with approval from an old manuscript of a distinguished judge : “If every part of the thing is removed from the space which that part occupied, yet the whole thing is not removed from the whole space which the whole thing occupied, the asportation will be sufficient; so, drawing a sword partly out of its scabbard will constitute a complete asportavit.” The defendant picked up the papers from the table; he held them in his hand ; he put them in his pocket and was walking away with them when he was arrested. In whose possession were they at that time if not in his, and how did they get there unless by his unauthorized, physical interference with them? The district attorney did not authorize him to take them, for he could not and the defendant knew that he could not. Neither the district attorney nor the detective stood for the state of New York in placing them where the defendant could get them, for no court or officer has that power under the law.
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Vann, J.
The indictments against Dr. Flower were records or documents filed in a public office under the authority of law. (Code Crim. Pro. § 272; Code Civ. Pro. § 866.) They were the property of the state and a willful and unlawful removal of them constituted a crime under section 94 of the Penal Code. Any one who unlawfully obtained or appropriated them was guilty of grand larceny in the second degree, according to the provisions of another section of the same statute. (Penal Code, § 531.) Whoever is guilty of violating either section may be convicted of an attempt to commit the offense specified therein, even if it appears on the trial that the crime was fully consummated, unless the court in its discretion discharges the jury and directs the defendant to be tried for the crime itself, which was not done in the case before us. (Code Crim. Pro. §§ 35 and 685.) The jury found the defendant guilty of an attempt both to remove and to steal the indictments, and after affirmance by the Appellate Division we are confined in our review to such questions as were raised by exceptions taken during the trial.
In view of the able and exhaustive opinion of the Appellate Division, the only question we feel called upon to consider is that raised by the challenge of the learned counsel for the appellant in the nature of a demurrer to the evidence. He claims that even on the assumption that ail the evidence for the prosecution is true, still the facts thus proved do not constitute the crime charged in either count of the indictment. His argument is that the object of-the district attorney was not to detect, but to create a crime, and that
no crime was committed by the defendant in talcing the indictments into his possession, because he took them with the consent of the state as represented by the district attorney.
The flaw in this argument is found in the fact that the records were the property of the state, not of the district attorney, and that the latter could not lawfully give them away or permit them to be taken by the defendant. Purity of intention only could prevent the. action of the district attorney from being a crime on his part. This is true also as to the detective, for if either had in fact intended that the defendant should permanently remove the indictments, and steal, appropriate or destroy them, he would have come within the statute. Neither of those officers represented the state in placing the records where the defendant could take them, but each was acting as an individual only. Neither had the right or power, as a public officer, to deliver them to the defendant, and if either had acted with an evil purpose, his act would have been criminal in character.
An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. (Penal Code, § 34.) Felonious intent alone is not enough, but there mvst be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause. In People v. Bush (4 Hill, 133) the prisoner solicited one Kinney to burn a barn, and gave him matches for the purpose, and it was held sufficient to warrant a conviction for attempt at arson, although the prisoner did not mean to be present at the commission of the offense, and Kinney did not intend to commit it. The furnishing of the matches was the overt act. If the defendant did anything with intent to steal the papers, which in the ordinary course of events, unless interfered with, would have resulted in the
theft thereof, it was an overt act. (People v. Sullivan, 173 N. Y. 122, 133.) Taking up the records, putting them in his pocket and walking away with them was an overt act, because it was done with the intent to remove and appropriate them, and would ordinarily result in carrying that intention into effect. It was a trespass to take the indictments into his possession under the circumstances, for he did it, as the jury found, with the intention of stealing them. It was not necessary that the trespass should be accompanied with violence, as it was enough for him to secure the physical custody of the papers and have it in his power to take them away and appropriate them, the same as if he had picked them up in the clerk’s office. No more force would be required in the case supposed than in the case proved. The touch of a pickpocket is so light that it cannot be felt, yet the force is sufficient to constitute a trespass and an attempt to commit a crime, even if there is nothing in the pocket to steal. (People v. Moran, 123 N. Y. 254.) As was. said by the court in a late case : “It is now the established law, both in England and in this country, that the crime of attempting to commit larceny may be committed, although there was no property to steal, and thus the full crime of larceny could not have been committed. ” (People v. Gardner, 144 N. Y. 119, 125, and cases cited.)
Knowing that he had no right to the indictments, and that the officers had no right to let him have them, when the defendant picked them up from the table and put them in his pocket animo furandi, the law presumes that the act was done vi et armis, for the amount of violence is not important. He removed the papers from the control of the real owner and had them in his own control, so that the state could not have recovered possession without his consent or by forcibly taking them away from him, which was in fact done. The detective could only get them back if he and his assistants were strong enough, unless the defendant
voluntarily gave them up. He had the same control of them that he had of his own pocket book, for both were in his pocket and neither could be taken from him except by the use of force. Temporary possession, though but for a moment, by one who intends to steal is enough, and possession “is the having or holding or detention of property in one’s power or command.” (Harrison v. People, 50 N. Y. 518.) As was said by Judge Folger in the case cited, quoting with approval from an old manuscript of a distinguished judge : “If every part of the thing is removed from the space which that part occupied, yet the whole thing is not removed from the whole space which the whole thing occupied, the asportation will be sufficient; so, drawing a sword partly out of its scabbard will constitute a complete asportavit.” The defendant picked up the papers from the table; he held them in his hand ; he put them in his pocket and was walking away with them when he was arrested. In whose possession were they at that time if not in his, and how did they get there unless by his unauthorized, physical interference with them? The district attorney did not authorize him to take them, for he could not and the defendant knew that he could not. Neither the district attorney nor the detective stood for the state of New York in placing them where the defendant could get them, for no court or officer has that power under the law. The statute expressly prohibits a record or document “whereof a transcript duly certified may by law be read in evidence,” from being “removed, by virtue of a subpoena duces tecum from the-office in which it is kept; except temporarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk; or by the officer, having it in custody, to a term or sitting of a court or * * * referee, held in the city or town where his office is situated.” Where it is required at any other place, for use as evidence, it may be removed by order of the court “entered i'n the minutes;.
specifying that the production of the original, instead cf the transcript, is necessary.” (Code Civ. Pro. § 866.)
This is the only statute which confers any power on the court in relation to the subject and, clearly, it did not authorize the court to allow the district attorney to take the indictments in question for the .purpose of giving them away, even temporarily, or permitting them to zbe taken into possession by one who wanted to steal them. An order made for such a purpose would be void, but no order of the kind was actually made by the court, or “entered in the minutes.” The district attorney told one of the judges, out of court, what he wanted of the indictments, and, to use his own words, “that I desired to keep them over night, but I did not want to go to the clerk’s cffi.ce about it and that I did not want to do it without the consent of some judge and he was the only judge in the building and he consented.” While such consent gave some moral support to the district attorney, it added not a whit to his legal powers. The Code of Criminal Procedure requires that an indictment
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'must be filed with the clerk and remain in his office as a public record.” (§ 272.) No one is authorized to take it away, except when if is needed as evidence, or in court upon the trial of the accused. We have recently held that a record made for the purpose of identifying a convict and kept in the office of the superintendent of state prisons, ■could not be given away or surrendered, even after the person convicted had been acquitted upon a new trial granted through appeal. We declared that the record was beyond the control of the superintendent except for preservation and use, and that even the courts could not .compel him to give if up without express authority from the legislature. (Matter of Molineux, 177 N. Y. 395, 398.)
If the district attorney had had the indictments in his possession for use in court in prosecuting Dr. Flower, such possession would have been the possession of the state, for
it would have been lawful and in the line of his duty. When, however, he had them in his possession for the purpose of delivering them to the defendant, or letting him take them with intent to carry them away and destroy them, such possession was not that of the state, for the district attorney was not then acting in an authorized or official capacity, although it is conceded that he thought he was.
As the defendant “proposed the scheme and put in motion the forces by which the indictments were actually removed from the files of the court and delivered to him, ’> we agree with the Appellate Division that he was a principal throughout the transaction. (Penal Code, § 29; People v. Bliven, 112 N. Y. 79; People v. Peckens, 153 N. Y. 576.) However, even if he had not instigated the scheme pursuant to which the indictments were removed from the office cf the clerk and brought where he could put his hands upon them, still, if he then took them into his possession with intent to steal them, knowing what they were and where they came from, he was guilty of the offense charged. It was unnecessary for him to remove them from the clerk’s office, but was sufficient if he took them animo furandi from any place, or from any person, either witlixor without consent.
We shall not review the authorities cited on either side, for that duty has been so thoroughly discharged by the Appellate Division that we can throw no further light upon the subject. We merely state that an important distinction between this case and those relied upon by the appellant is found in the difference between public and private ownership of the property taken by the accused. In most cases some third person is injured by the crime and is directly or indirectly the complainant, but in this case the state was, as it must be in all criminal cases, the prosecutor and it was also the injured party, for its property was the subject of the attempt at larceny. If
an .individual owner voluntarily delivers his property to one who wishes to steal it there is no trespass, but when the property of the state is delivered by any one, under any circumstances, to any person for the purpose of having him steal it and he takes it into his possession with intent to steal it, there is a trespass and the attempt is a -crime. The state did not solicit or persuade or tempt the defendant, any more than it took his money when he handed it over to the detective. Neither did the district attorney, as such, but Mr. Jerome did, acting as an individual, with the best of motives, but without authority of law and, hence, his action did riot bind the state. 'While the courts neither adopt nor approve the action of the officers, which they hold was unauthorized, still they should not hesitate to punish the crime actually committed by the defendant. It is their duty to protect the innocent and punish the guilty. We are asked to protect the defendant, not because he is innocent, but because a zealous public officer exceeded his powers and held out a bait. The courts do not look to see who held out the bait, but to see who took it. When it was found that the defendant took into his possession the property of the state with intent to steal it, an offense against public justice was established and he could not insist as a defense that he would not have committed the crime if he had not been tempted by a public officer whom he thought he had corrupted. He supposed he had bought the assistant district attorney when he handed over the money, but he knew he had not bought the state of New York and, hence, that the assistant had no right to give him its property for the purpose of enabling him to steal it.
The judgment of conviction should be affirmed.