Supreme Court. Monroe General Term.

September, 1865.

Johnson, *J. G. Smith*and *M' D. Smith,*Justices.

#### The People v. Orson Bruno.

The right given by the Revised Statutes to obtain a review of a criminal case on exceptions supersedes the necessity for the practice previously established, by which an inferior court of criminal jurisdiction, after conviction, suspended sentence and asked for and obtained the advice of the Supreme Court as to doubtful questions of law that had arisen oh the trial.

Such practice, however, has not been abolished, and it is competent for the Supreme Court to entertain such an application, and to decide it upon its merits.

Where an indictment contained two counts, one for larceny and the other for receiving stolen property, knowing it to have been stolen, and the jury found a general verdict of guilty, and it appeared that both counts related to the same transaction, *held,*that there was no ground for sustaining a . motion in arrest of judgment, but that judgment should be given for the highest grade of offense.

A motion in arrest of judgment is not limited to the indictment, but may be made on the whole record, which includes the verdict.

Form of an entry on the record made by the Court of Sessions, for the 'purpose of asking the advice of the Supreme Court upon questions of law involved in the case.

The prisoner had been tried and convicted, in the Court of Sessions of the county of Livingston, under an indictment containing two counts, one for larceny and one for receiving stolen goods, knowing them to have been stolen.

"An entry in the following words was made on the record, and sent to this court, upon which the advice of this court was asked:

“ On this day, to wit, this third Monday of May, in the year of our Lord one thousand eight hundred and sixty-five, the district attorney moved for judgment against said defendant, whereupon the said defendant, by his counsel, moved in arrest of judgment on the ground that the indictment contains two counts, one for larceny and the other for *650receiving stolen property, knowing it to have been stolen, and which indictment was found by the grand jury on account of and out of the same transaction, and for the purpose of meeting the evidence in the case in relation thereto, and although the evidence showed but one transaction, yet the jury found a general verdict of guilty, therefore, making it impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced.

“ Whereupon the said court determine and certify to the Supreme Court, that the evidence offered upon the trial hereof was of one transaction, and that both such counts and such verdict relate to one transaction, and said court not being advised what judgment it should render in the premises, direct that judgment be suspended for the purpose of taking the advice of the Supreme Court, what judgment, if any, should be rendered upon such verdict, and whether or not, such judgment should be arrested as moved for by said defendant, and direct that -these questions be presented to the general term of the Supreme Court of the Seventh district, at the next term thereof, by the defendant’s' counsel on behalf of this court, and upon at least four days’ notice'to the counsel of the people. The counsel for the people objects to the finding by this court, that both counts refer to the same transaction, and that the verdict can relate to but one transaction.

“S. HUBBARD, *County Judge.*

“UTLEY SPENCER, ) *T ..*, „ . .

“ J. T. VAN NESS, $

“I, Harvey G. Baker, clerk of said court, do certify that the foregoing determination and certificate was made by the Court of Sessions, of the county >of Livingston, and signed by the members thereof in open court at the time and in the year aforesaid.

r -j “ Witness my hand and the seal of said court, ■ " Sthis twenty-fourth day of May, A. D. 1865.

“ H. G. BAKER, *Clerk."*

*651*Scott Lord,*for the defendant.

I. The judgment must be arrested for the reason that it is “impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced.” *(The People*v. *Wright,*9 *Wend.,*196.)

1st. So far as appears from the indictment itself and the verdict, it may not be impossible that the defendant committed both offenses, and if so, he would be subjected to distinct punishments for each. *(Kane*v. *The People,*8 *Wend.,*204.)

2d. But as it appears from the certificate of the Court of Sessions, that there was but one transaction, and but ■ one offense, what judgment can it pronounce? The crime of grand larceny must be punished by imprisonment in the State prison, for a term not less than one and not exceeding five years. *(2 R. S., page*679, *sec.*63; *N. Y. Statutes at Large, 5th vol.,*204.) The crime of receiving stolen property may be punished by imprisonment for a term not exceeding five years, or by one day’s imprisonment in the county jail, or by a fine of six cents (2 *R. S., page*680, *sec.*71), and if this conviction stands, the statute requires the court to pronounce judgment ■ for both offenses.

3d. No distinction can be made so far as the question before the court is concerned, whether the offenses are charged in one count or in two counts; if in one, the count would be bad for duplicity. But in regard to making an arbitrary selection the difficulty is the same. *(The People*v. *Wright,*9 *Wendell,*196; *Lambert*v. *The People,*9 *Cowen,*586; *Reed*v. *People,*1 *Parker’s Crim. Law,*481, 488, 489.) It will be seen, in this latter case, that although the court say the indictment is bad for duplicity, it also finds the same difficulty as is stated in 9 *Wendell. (Thomas*v. *The State,*5 *How. U. S. R.,*20; *Steele*v. *Anderson,*1 *Strobhart,*455; *Barb. Crim. Law,*298, 365; 2 *652*McCord,*257; *U. S.*v. *Stetson,*3 *Woodbury & Minot,*166; *Wharton's Crim. Law, 4th ed.,*580, 591, 3,046, 3044.)

4th. In the cases quoted by the counsel for the people, what the jury might have found, or what the court might have known, has been left open to inference; but no such inference is open in this case, for the court distinctly find that the indictment, evidence and verdict all relate to one transaction.

II. The verdict is inconsistent and repugnant. It is impossible that in *one*and the *same*transaction a person can be guilty of the original offense of stealing property, and of receiving the *same*property, knowing it to have been stolen.

1st. The evidence proving the larceny would *ex necessitate rei*acquit a defendant of the charge of receiving the same property knowing it to have been stolen, and evidence that he had received it knowing it to have been stolen, would also of necessity acquit him of the charge of larceny. Formerly, in England, a receiver was by statute treated as an accessory, and could not be tried until after the principal had been convicted, but afterwards the statute made the offense a *principal*felony, and such is our statute. *(The People*v. *Wiley,*3 *Hill,*194, 204, 206.)

2d. The two offenses, by our statute, are treated as distinct and separate offenses. By *sec.*63 *of page*679, *of the 2d vol. of the Rev. Statutes,*it is provided that “ every person who shall be convicted of a felonious taking and carrying away the personal property of another, of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny.” And by sec. 71, “ every person who shall buy or receive in any manner, upon any consideration, any personal property, of any value whatsoever, that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, shall, upon conviction, be punished,” &c., and there is no occasion in an indictment for this offense, to state either the *653time or place of the original stealing. *(Barb. Crim. Law, 177; 3 Chitty’s Crim. Law,*958; 2 *East P. C.,*780.)

III. By allowing a general verdict to be taken upon an indictment, charging two distinct offenses out of the same transaction, a verdict of guilty may be rendered against a defendant, when in truth the jury did not find him guilty of any offense. *(Dediu*v. *The People,*22 *N. Y. Rep.,*180.)

IV. The defendant is not legally in fault, nor is he open to any manner of censure for the situation of the case. At the outset he moved that the district attorney elect which count he would proceed upon, which motion was denied. It behooves the district attorney from that time forward to see that no injury resulted to the defendant from such denial, more particularly for the reason he could not have the benefit of an exception or writ of error on account of it. *(The People*v. *Baker, 3 Hill,*159.)

But it has been distinctly held that “the prisoner is entitled, on the motion in arrest to avail himself of every objection, either in substance or form, which could have been taken on a demurrer to the indictment.” *(People*v. *Dwight,*9 *Wend.,*196.) If this be so in regard to a question which might have been taken upon the arraignment, how touch more should it apply to so substantial an error, occurring at the very close of the trial.

V. A refusal to arrest a judgment cannot be reviewed by exceptions or a writ of error. *(The People*v. *Casborus,*18 *John.,*351; *do.*v. *Dalton,*15 *Wend.,*581, 584.) This point is made:

1st. As a reason why this court should give the advice requested.

2d. As a reason why the Court of Sessions, if there be even a doubt as to its right to pronounce judgment, should grant the motion in arrest, more particularly so, because the people have the right to review the question by writ of error. *(The People*v. *Ont. Genl. Sessions,*2 *Wend.,*631.)

*654VI. The Court of Sessions have power to grant a new trial for irregularity *(Gay*v. *Monroe Genl. Sessions,*12 *Wend.,*272): but if there is any doubt of this, and as a further reason why any doubt should be given in favor of the defendant, it appears that if the judgment is arrested, the defendant can be tried again,, and this is settled by numerous authorities, among them, *Bishop on Crim. Law,*694, 695; *Wharton Ib.,*§§ 3043-44; *The People*v. *McKay,*18 *John.,*212, 218; *Girard*v. *The People,*3 *Scammon,*362-63-64; *Requav. Reed,*1 *Eng. L. & E.,*595; *People*v. *Casborus,*13 *John.,*352; *Barb. C. L.,*298; *G. & W. on N. T.,*134.

*G. J. Davis*(District Attorney), for the people.

The two counts are properly joined in one. indictment. *(Kane v. The People,*8 *Wend.,*203; 11 *Metc.,*575, 581; *Keefer*v. *The State,*4 *Ind. Rep.,*246; 17 *Verm.,*658.)

*By the Court,*E. Darwin Smith, J.

Before exceptions were given in criminal cases it had become the practice in this State, of Courts of Oyer and Terminer and General Sessions and other inferior courts having criminal jurisdiction, to suspend sentence after conviction, when difficult or important questions of law had arisen upon the trial, and ask the advice of the Supreme Court in respect to such questions. The practice was sanctioned by this court, and such advice was given as though applied for in due legal form. (6 *Cowen,*556.) In the Revised Statutes of 1830, exceptions were given in criminal cases as in civil, with the writ of certiorari, to bring up for review questions of law made and decided at the trial which obviously dispensed with the necessity of such practice, and it has since in a great degree fallen into disuse. But applications of this kind have nevertheless been made and entertained in some instances since the revision of the statutes in 1860. Such was the case of *The People*v. *Wright*(9 *Wend.,*193); *The People*v. *Stearne*(21 *ib.,*409); *655*The People*v. *Cummings,*3 *Park. Cr. Rep.,*343), and though I think the court would be entirely justified in declining now to give such advice, and leave the parties to their writ of error or *certiorari*upon the exceptions taken at the trial, I am not aware that the court has in any instance refused to entertain such application when duly made at the. instance of any inferior court. The papers before us upon this application, show that this case has been once before us upon *certiorari*and exceptions, and that the conviction was affirmed by this court, and the case remitted to the Court of Sessions, with directions to carry the conviction into effect by the proper sentence of the prisoner. The counsel for the prisoner, it now appears from the certificate of the Court of Sessions, moved in that court in arrest of judgment, on the ground that the indictment contained two counts, one for larceny, and the other for receiving stolen property, knowing it to have been stolen, and the jury having found a general verdict of guilty, it is impossible (it was urged) for the court, without an arbitrary selection, to determine the proper judgment to be pronounced. The inquiry addressed to this court is, whether the motion in arrest ought to be granted. Motions in arrest of judgment can only be made for matters appearing on the record. (1 *Chitty Crim. Law,*661; *Wharton’s American Crim. Law,*3043; 1 *Archbold Crim. Plead.,*671.)

Any objection which would be fatal on demurrer, will be equally so on motion in arrest of the judgment after verdict. *(Chitty,*662; *People*v. *Wright,*9 *Wend.,*196.) The joinder of the two counts in this case for larceny, and for the receiving of stolen property, knowing it to be stolen, would not have been bad upon demurrer. In this State, the joinder of such counts I think has been ever allowed in a single indictment, and where an offense comprises different degrees, is expressly authorized by statute. (2 *Rev. Stat.,*751, § 51.)

*656In *Wharton’s American Crim. Law*(§ 402), it is said that in England, as well as in this country, the correctness of the joinder of larceny with receiving stolen goods, may be considered as established. When offenses of the same nature, and for which the same or similar judgments may be given, are stated in different counts of the same indictment, an objection to such indictment on that ground cannot be sustained in error or on demurrer, or in arrest. *(Wharton,*§ 415; 5 *Met.,*582; 8 *Wend.,*204; *People*v. *Kane, Archbold,*308.) But the motion in arrest is not limited to the indictment, but may be made upon the whole record, which includes the verdict. And the motion in this case is chiefly based upon the fact that the verdict is a *general*one, not applied by the jury to either count of the indictment, and that it is, therefore, *“ impossible for the court, without making an arbitrary selection, to determine the judgment to be pronounced,”*and this presents the chief apparent difficulty with the Court of Sessions. If the offenses charged in the indictment were really distinct and separate offenses, relating to different transactions, and subjecting the offender to different kinds of punishment, the difficulty which embarrassed the court below would be a real one, and the objection to award of judgment upon the conviction, I think, would be insuperable. ( U. *S.*v. *Peterson,*1 *Woodbury,*321, and 1 *McCloud,*257; *State*v. Montaigne.) But it is a mistake to regard the offenses charged in this indictment as separate and distinct offenses within the true intent and meaning of the phrase. They are really different phases, or parts or degrees of the same offense. The judges of the Court of Sessions, upon their certificate, upon which our advice is asked, certify that the evidence offered on the trial was of one transaction, and that both such counts and such verdict relate to one transaction, and they also say “ that said indictment was found by the grand jury on account of, and out of the same transaction, and for the purpose of meeting the evidence *657of the case in relation thereto.” It seems to me that this certificate presents the precise case so well described by the Chancellor, in *Kane*v. *The People*(8 *Wend.,*211), in these words: “It is every-day practice to charge a felony in different ways in several counts, for the purpose of meeting the evidence as it may come out upon the trial; each bf the counts on the face of the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved; but no one ever supposed that formed a ground for arresting the judgment.” In such case, a general verdict of guilty implies a conviction of the greater offense, which includes the less. Every larceny includes, or may include a concealment of the stolen property. The punishment upon a conviction for grand larceny may be imprisonment in a State prison for a term not less than two nor exceeding five years. For the crime of concealing stolen property, it may be imprisonment for five years or less, down to one day’s imprisonment in the county jail. When an offense consists of different degrees, the jury may convict upon any count, but if they convict of an inferior degree, they must say so in their verdict. In this case, the bill of exceptions before us, shows that the prisoner had at one time possession of the stolen property, and sold the same. The jury might, iipon this evidence, have convicted him of receiving the stolen property under the second count, and this would have been equivalent to an acquittal upon the first count, charging him with the larceny. As they did not thus render their verdict finding him guilty on such second count, they must be deemed to have found him guilty of the larceny. This is the meaning of their verdict. It is well settled that when there is a general verdict of guilty, upon several counts relating to the *same*transaction, the practice is to pass judgment on the count charging the highest grade of offense. *(Wharton,*§ 3048; *Manly*v. *The State of Maryland,**6587 *Maryland Rep.,*135; *State*v. *Hooker,*17 *Vermont,*668; *State*v. *Donnee,*8 ib., 424; *United States*v. *Peterson,*1 *Woodbury Rep.,*305.) This question was before us on a former occasion in the case of *The People*v. *McGeery,*convicted of burglary in the Ontario Oyer and Terminer. The indictment contained quite a number of counts, all relating to the same transaction, and the verdict was a general one of guilty. The prisoner was sentenced for the highe.st grade of the offense charged in the indictment, and we held it right, and affirmed the judgment upon error. We think in this case that the verdict of guilty must be deemed a verdict for the larceny charged in the first count, and that the offense charged in the second count is to be deemed an inferior degree of the same offense, and merged in the same, and advise the General Sessions .of the county of Livingston to sentence the prisoner accordingly.