The People of the State of New York, Respondent, v. Louis Willett, Appellant

The People of the State of New York, Respondent, v. Louis Willett, Appellant. An indictment for murder in the first degree contained nine counts; three of them alleged the killing as perpetrated while the accused was engaged in the commission of or the attempt to commit a felony, i. e., grand larceny. These were demurred to on the ground that the counts did not contain a correct statement of that offense. They averred that the defendant “ did feloniously steal, take, and carry away ” certain property, which was specifically described, and its value stated at a sum which was more than 825, and its ownership was also stated. Held, that the demurrer was properly overruled; that the counts contained a sufficient averment of the crime of grand larceny. The verdict was a general one of guilty. Held, that as other counts ia the-indictment were good, the conviction must be sustained even if the counts demurred to were defective. The ordinary common-law counts for murder are still sufficient as a plead- . ing to sustain a conviction. (Argued March 25, 1886 ; decided April 13, 1886.) Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made the fourth Tuesday of January, 1886, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Ulster, convicting the defendant of the crime of murder, and affirming an order overruling a demurrer to three counts of the indictment herein. The material facts are stated in the opinion. William Lounsbery for appellant. The indictment was insufficient. It should have described the act so that the facts pleaded would lead to the guilt of the crime as a conclusion. (Code of Crim. Pro., § 275, subd. 2; id., § 183; Penal Code, § 528.) The indictment was defective as it does not allege an appropriation of the goods, with felonious intent, to the use of the defendant or of any other person other than the owner. (Archbold’s Crim. Pl. 366; McCourt v. People, 64 N. Y. 583.) The acts charged in the indictment do not constitute larceny in the first or second degree. (Penal Code, §§ 528, 530, 531.) A. T. Clearwater for respondent. Tlie demurrer was properly overruled; the first three counts of the indictment containing a correct statement of the offense of grand larceny. (Penal Code, §§ 530, 531, 533, 534.) Presumptions of law or matters of which judicial notice is taken need not be stated in an indictment. (Code of Crim. Pro., § 286.) The court will take judicial notice that he who is engaged in stealing property of the value of more than $25 is engaged in the commission of a felony. (Code of Crim. Pro., §§ 273, 283, 284, 285.) If an indictment contains one good count, it is sufficient, although there may be other defective counts therein. (Phelps v. People, 72 N. Y. 365 ; People v. Davis, 56 id. 95; Gunther v. People, 24 id. 100; Critchton v. People, 6 Park. Cr. 361; 1 Keyes, 344; 1 Abb. Ct. App. Dec. 470; People v. Stein, 1 Park. Cr. 202; Barron v. People, id. 246; 4 id. 26; 33 How. Pr. 70; Frazer v. People, 54 Barb. 306, 308 ; People v. Herrick, 13 Wend. 91, 92; Bretschofsky v. People, 3 Hun, 40; 60 N. Y. 616; Lyons v. People, 68 Ill. 272; Latham v. Queen, 9 Cox’s Cr. Cas. 516; Cook v. State, 49 Miss. 9 ; Estes v. State, 55 Ga. 131; Adams v. State, 52 id. 565; Chappell v. State, 52 Ala. 359; 1 Bishop’s Cr. Pr. [2d ed.], § 1015 ; 3 Whart. Cr. L. [7th ed.], §§ 3208, 3209; People v. Gonzalez, 35 N. Y. 60; Wood v. People, 61 id. 117.) Where an indictment contains several counts, some of which are good, the fact that some of the counts are bad does not make a conviction erroneous where the verdict is general. (Hope v. People, 83 N. Y. 418 ; Pontius v. People, 82 id. 339 ; People v. Davis, 56 id. 85.) The statute defining homicide is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proof requisite to a conviction ; and an indictment containing a count charging murder in the common-law form, if sustained by evidence, justifies a conviction for any of the degrees of felonious homicide known to the law. (People v. Enoch, 13 Wend. 159-172; People v. White, 22 id. 169, 175; Fitzgerald v. People, 37 id. 413, 422; Kennedy v. People, 39 id. 245, 250; Cox v. People, 80 id. 500; People v. Conroy, 97 id. 62; White v. Comm., 6 Bing. [Penn.] 179 ; Fuller v. State, 1 Blackf. [Ind.] 63 ; Wicks v. Comm., 2 Brock. [Va.] 389; Mitchell v. State, 5 Yerg. [Tenn.] 340 ; S. C., 8 id. 514; Comm. v. Flannigan, 7 Watts & Serg. [Penn.] 415.) The rule that a penal statute is to be strictly construed does not apply to the Penal Code. (Penal Code, § 11.) Eo indictment • is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (Code of Crim. Pro., § 285.) [MAJORITY — Finch, J.] Finch, J. This appeal brings up the record alone and raises merely a question of pleading. The indictment contains nine counts, each charging the prisoner with the crime of murder. To the first three a demurrer was interposed upon the ground that they did not sufficiently charge the commission of the crime. • They aim to allege a murder perpetrated while engaged in the commission of a felony, or in the attempt to commit it; the felony intended being the crime of grand larceny. The defects pointed out are omissions asserted to be necessary to a correct statement of that offense, and consist in a failure to charge the particular intent essential to the crime, and to describe it as grand larceny so as to make it a felony. In the indictment the property stolen is specifically described, its ownership alleged, and its value stated at a sum greater than $25. The theft is then averred in this form : “ Did feloniously steal, take and carry away.” This language is identical with that used in Phelps v. People (72 N. Y. 334, 350), where it was held a sufficient averment of the crime of grand larceny, and in the precise words of the statute. The use of the word “ feloniously ” was deemed a sufficient averment of the intent necessary to constitute the crime, and the value of the property taken was a sum larger than $25, which fact was pleaded by alleging the full value. We do not think this authority is made inapplicable by the later definitions of the Penal Code. (§ 528.) That section defines with considerable detail what acts shall constitute larceny, and what intent shall characterize the crime, and in the end provides that he who with such intent does any of such acts, “ steals such property and is guilty of larceny.” The word “ steals ” is thus defined by the statute itself as covering all the prescribed derails, and its use in the indictment which charges the taking to have been felonious, or with a criminal intent, sufficiently includes the particular intent needed to constitute the larceny. It was not in the least difficult for the prisoner to understand from the indictment the nature of the crime with which he was charged. We think the pleading sufficiently alleged the commission of, or attempt to commit the crime of grand larceny. There is another answer to the argument in behalf of the prisoner. His demurrer was overruled, and at the close of the trial a general verdict of guilty was rendered. That verdict should be sustained if any count in the indictment is good (Phelps v. People, 72 N. Y. 335; Hope v. People, 83 id. 418, 424); and the demurrer to the first three leaves the remainder unassailed and without objection. Two of these are the ordinary common-law counts, which through all the mutations of the statutes defining the crime of murder, and discriminating between its different degrees, we have held to be sufficient as a pleading to sustain a conviction. We have so recently and so fully discussed the subject that a repetition of our views is not needed. (People v. Conroy, 97 N. Y. 62.) Those counts being good and the verdict a general one, the conviction must be affirmed irrespective of the question whether the first three counts were cjefective or not. The indictment largely follows old precedents, whose involved efforts at precision and profuse and awkward verbiage leading to objections of the most technical character, and opening doors to acute and refined criticism, it was the purpose of the Code of Criminal Procedure to reform. The reformation wins its way slowly, but it is our duty to support it when sufficiently attempted, and to encourage the desired result. To sustain the common-law form of an indictment for murder has been the steady ruling of the courts through all changes of definition and of practice, and we see no .reason to depart from that policy, unless by safe and prudent steps to permit that form when used to be further simplified, and brought more nearly to the standard prescribed by the Code. The judgment should be affirmed. All concur. Judgment affirmed.