555 | Whiting v. Leakin, Md.... 520 92 .... 425 746 182 548 715 590 Winship v. Portland League B. B., 43 etc., Ass'n......... 47 747 Troy, City of, ads. Kunz, N. Y.... 683 52 175 Van Cott v. Prentice, N. Y....... 202 ... 865 Whitney v. Pullman's Palace Car Wood v. Remick, Mass. Wood ads. Smith's Admr., N. J... 178 150 264 Barry, 854 THE EASTERN REPORTER. NEW YORK COURT OF APPEALS. PEOPLE, Resp't, v. McCALLAM, Appl't. December 7, 1886. CRIMINAL LAW - LARCENY - REQUESTS TO CHARGE-EVIDENCE CONFESSIONS. In a criminal case the trial judge cannot be required, during the course of the trial and before the testimony is all in, to rule upon abstract questions as to the presumption in favor of the defendant's innocence and that arising from the defendant's possession of the property claimed to have been stolen. The court may withhold its decision upon such questions until all the testimony is in and the case is ready for submission to the jury. If the charge as a whole conveys to the jury the correct rule of law on a given question the judgment will not be reversed, although detached sentences may be erroneous; and if the language employed be capable of different constructions that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appear that the jury were, or at least might have been, misled. Statements made by an officer to the defendant while searching her premises for stolen property, to the effect that she might as well own up as they had proof enough to convict her, and that she might consider herself under arrest, do not constitute such a threat as to render her confessions made in reply thereto inadmissible under section 395, Code Crim. Procedure. Appeal by defendant from a judgment and order of the general term of the supreme court, in the fourth judicial department, affirming a judgment of the court of sessions of Jefferson county, convicting the defendant of grand larceny in the second degree, and sentencing her to imprisonment at hard labor, in the Onondaga county penitentiary, three years and six months. The opinion states the facts. for Watson M. Rogers, for appellant. E. C. Emerson, district attorney, for respondent. MILLER, J. The defendant was indicted for the crime of grand larceny in the first degree and convicted of grand larceny in the second degree. There was sufficient evidence upon the trial to submit to the jury the question whether the defendant was guilty of the crime for which a conviction was had, and, under the facts proved, the court was not authorized to direct a verdict of acquittal. VOL. IX.-1 The proof established beyond question that the crime of larceny had been committed and there was evidence which pointed to the defendant as the guilty party. There was also evidence showing that the defendant had been informed by the wife of Hennessey that the money stolen was in a trunk belonging to Hennessey and kept under a lounge in his house. No person had access to the place where the trunk was kept from the time it was last seen there prior to its being taken besides Hennessey and his wife, except the defendant. The defendant was there on the night when the larceny was committed for the purpose of obtaining a bedstead of Hennessey's wife, as she stated, and while, at her request, Mrs. Hennessey went up stairs to procure the bedstead, she was alone for a period of about fifteen minutes, during which time she had ample opportunity to remove the trunk and its contents without being detected. She was thus in a position where she might have committed the crime alleged. Several gold coins of the same denomination and bearing the same, date as those stolen, were found concealed in the defendant's woodshed wrapped in a newspaper, other portions of which were found in the defendant's house. There was also evidence of some tracks of the defendant and her daughter, made as if engaged in carrying something, and which led to the place where the trunk was found with its contents gone, excepting a few small silver coins. In regard to these tracks the defendant and her daughter gave testimony which was contradicted by other evidence. The facts referred to, with other circumstances not necessary to enumerate, point to the defendant as the perpetrator of the crime, and it cannot be said, we think, that no offense was made out against her. It was for the jury to draw the inference as the case stood and to determine the guilt or innocence of the accused. No error was committed by the court upon the trial in refusing to hold at that stage of the case that upon a presumption that a larceny has been committed, no presumption can be founded that the defendant committed the crime, and that, as matter of law, no presumption of guilt can be raised from the possession of stolen property, except where the possession is conscious and exclusive on the part of the defendant. The court clearly had a right to reserve the disposition of these questions until the entire testimony was in, and could not, in accordance with any well-established practice, be required to indorse propositions before the case was finally closed. No motion was, at that time, before the court requiring its opinion on the abstract questions presented, and it was eminently proper to withhold its decision in regard to them until all the testimony was introduced and the case was ready for submission to the consideration of the jury. Any other course might lead to confusion and tend to embarrass the action of the court in its final disposition of the questions involved. The same questions were raised in the requests made to charge, some twenty-seven in all, at the close of the case. In regard to all of these it may be said they embraced mostly abstract propositions which would tend to confuse the case in the minds of the jury and not lead them to a correct result. The first proposition, above cited, may properly be said to be strictly accurate, but its presentation, in the form adopted, was in no sense required for the protection of the rights of the accused. The charge as made fully covered all the facts elicited by the evidence, and there is no rule under such circumstances which demands that the court should deal in presenting abstract theories which would not serve to elucidate or explain the case as presented by the testimony. The correctness of the proposition made would necessarily follow from the presentation made by the judge, in his charge, of the evidence upon the trial and the rules applicable to the same. The effect of the entire charge was that the commission of the crime alleged did not, of itself, raise a presumption of the defendant's guilt, and that evidence was essential to establish such guilt. As to the second proposition, it may be remarked that it was not strictly accurate. It was not necessary to show exclusive possession of the stolen property to authorize the conviction of the defendant, and such a rule only applies in a case where the evidence of guilt is in the possession of the property stolen, and it is to be presumed from that fact. The question whether such possession established guilt is one for the jury. In the case considered, where there was no direct proof of an actual possession but evidence of circumstances which tended to show that the defendant took and had possession of the money, it was for the jury to say whether she was guilty of the offense charged, and the proposition stated would seem to be inapplicable. What has been already remarked generally as to the first proposition is also applicable to the second, as well as to the other requests made. The rule applicable to the requests made, is stated in Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, by CHURCH, Ch. J., as follows: "If the charge, as a whole, conveyed to the jury the correct rule of law on a given question the judgment will not be reversed, although detached sentences may be erroneous, and, if the language employed be capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appear that the jury were, or at least might have been, misled." Having this rule in view, we are unable to discover any ground of error in any of the refusals to charge any of the requests made. Upon the trial a motion was made by the defendant's counsel to strike out all the evidence given by one Kinney in regard to the admissions made by the defendant of certain statements made by the officer, Guest, to the defendant, and also all the other evidence of one Champlin as to the admissions made by the defendant that certain tracks, testified to, were hers and her daughter's, for the reason they were made under threats by the officers, and that she was told she might as well own up, as they had proof to convict her. A further motion was made to strike out all the evidence given on the subject subsequent to the statement that there was evidence sufficient to convict the defendant. The court denied each of the motions, and the defendant excepted separately to the rulings. It appears that three of the constables were at the defendant's house to make a search for the money stolen when they had the conversation with the defendant as already stated, and, after which, she told them about the tracks. |