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1 People vs. Charles H. Phelps 1876

handle is hein.trials/aazy0001 and id is 1 raw text is: ALBANY OYER AND TERMINER. THE PEOPLE V. CHARLES H. PHELPS. In announcing the decision of the court the prisoner is entitled to acquittal upon this upon the motion by the counsel of the prisoner ground. to instruct the jury to acquit him, Judge The next proposition which is urged is that the indictment improperly charges this draft Westbrook said: as belonging to the State, and that the aver- ment should be that it was the property of This case undoubtedly presents very many the Deople of the State. Upon this point we grave questions for the consideration of this hold that it, infact, isthepropertyof theState. court and perhaps for other and higher courts, the coroorate body, The provision of the con- The questions have been elaborately and care- stitutio'n of the State to which counsel have re- fully discussed upon both sides; and we have ferred, relates to the lands of the State; but endeavored to give them an impartial con- there is no constitutional provision vestingthe sideration, during the limited time we have title of the personal property belonging to the had for that purpose. We have reached a State in Lhe people. Various statutes, which conclusion, and I will proceed to announce have been cited by the District Attorney upon that conclusion and some of the reasons the argument, refer to the State as the owner therefor very briefly, of personal property, thus incidentally recog- It is claimed that the prisoner cannot be nizing the title to personal property as being convicted under this indictment because the in tho State as such. I will not cite the sta- laws of this State do not recognize this mode tutesindetail. They are contained in thevery of transmission of the taxes due the State, elaborate and carefully prepared brief which and that consequently neither the State, nor the District Attorney has prepared and to the Comptroller as such, nor the Comptroller which I refer. (See 2, R. S., 703, sections 35- as an individual, nor the Treasurer as such 36. nor the Treasurer as an individual, took any By a reference to these statutes it will be pioperty in the draft in question; and that seen, that by the use of the words property consequently there must be an acquittal of this State, the Legislature recognizes the the prisoner because the title to the property fact that the corporate body, which we call was not in either of the parties or corpora- the State of New York as such may hold tions which in the indictment are alleged to and own property. be the owners of the draft. But if we deemed this objection more tech- Upon this proposition, we hold that this nically right than it is, we should still be con- draft having been sent to the Comptroller, for strained to overrule this objection for another the purpose of paying the taxes, that the reason, and that is, that the statutes provide State had such a property in it, as that against (2 vol. Edmonds' statutes, page 751, section 52, a thief it is properly charged to be the prop- and subdivision 4): No indictment shall be erty of the State. It has been held that where deemed invalid, nor shall the trial, judgment A steals from B. and C again steals from A, or other proceedings thereon, be affected. * * that you can charge in the indictment that it 4. By reason of any other defect or imperfec- is the property of the first thief. tion in matters of form, which shall not tend If that proposition be sound this draft to the prejudice of the defendant. surely can be charged to be the property of a Whether this draft is chared to be the pro- person or corporation who or which had pos- perty of the State of New-York or the pro- session of it by the will of the true owner, if perty of the people of the State of New York. the transfer and possession did not amount to is so purely a matter of form that it could an actual transfer of the title, not possibly produce any injury to the pri- As a second answer to the proposition Of soner. the prisoner's cou~psel we hold that the pris- For these reasons we hold that the prisoner oner having received this property for the may be convicted of larceny under this in- Treasurer as the property of the State, and dictment so far as the objection we have now having entered it as the property of the State considered is concerned. first upon the cash-book of the daily receipts It is also claimed that this draft cannot be of the Treasurer's office, and second upon the the subject df larceny because it is not a com- book which gives credit to the various coun- plete instrument; for it was not endorsed by ties on account of taxes paid, that he is not the State Treasurer, and also because it was in the position to set up a want of legal title payable to the order of the Comptroller, and in the State, the State having thus the actual was not endorsed by him but only by Gallien, possession of the property. Again, if this the second deputy. Gallien's endorsement is draft was illegally received in payment of the claimed to be informal because it does not taxes, and if the State had no right to hold it, purport to be the act of the Comptroller and then either Mr. Hopkins, the Comptroller, or also because the second deputy has no power Mr. Raines, who did hold it, would hold it for to endorse. We think this objection cannot the true owner as trustee. And either would prevail for the reason that it assumes, that to have then such a special property in it that it constitute a larceny, the property that the could be treated for the purposes of this in- thief gets should be legally available in his dictment, as the property of either, as an in- hands. It is enough, we claim, if the owner dividual. We therefore decline to hold that has been deprived of a valuable thing, whether

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