143 A.D. 251, People v. Miller

Citation:143 A.D. 251
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Appellant. v. JOHN MILLER, Alias JOHN PETERS, Respondent.
Case Date:March 17, 1911
Court:New York Supreme Court Appelate Division, First Department
 
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Page 251

143 A.D. 251

THE PEOPLE OF THE STATE OF NEW YORK, Appellant.

v.

JOHN MILLER, Alias JOHN PETERS, Respondent.

Supreme Court of New York, First Department.

March 17, 1911

Page 252

APPEAL by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace in and for the county of New York, bearing date the 28th day of November, 1910, and entered in the office of the clerk of said court, arresting judgment.

COUNSEL

Robert S. Johnstone, for the appellant.

Lorlys Elton Rogers, for the respondent.

SCOTT, J.:

Appeal by the People of the State of New York from an order of the Court of General Sessions of the Peace in and for the county of New York, arresting a judgment of conviction of the above-named defendant of the crime of unlawfully entering a building with intent to commit a larceny therein. The defendant was indicted for the crimes of burglary in the third degree, grand larceny and receiving stolen goods, each being charged as a second offense. At the close of the entire case the court, on the defendant's motion, withdrew from the consideration of the jury the charge of burglary, grand larceny and receiving stolen property as charged in the indictment, but submitted the case to the jury with instructions that defendant might be found guilty of an attempt to commit petit larceny or of an unlawful entry, both as a second offense. The defendant objected to the submission of the crime of unlawful entry on the ground that it was no degree of burglary, was a separate and distinct offense, and was not a crime the commission of which was necessarily included in that with which he was charged in the indictment. The court overruled the objection and the defendant excepted. The jury convicted the defendant of the crime of unlawfully entering a building with intent to commit a

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larceny therein as a second offense. Thereupon a motion in arrest of judgment was made, and the order appealed from was entered. There are two sections of the Code of Criminal Procedure permitting a conviction for a lesser crime than that charged in an indictment. They read as follows: '§ 444. Upon an indictment for a crime consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. * * *.'

'§ 445. In all other cases the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment.'

These two sections were not enacted with any purpose to introduce a new rule of criminal law, but were both declaratory of the rule which had always obtained at common law, which was that the prosecution never was allowed to fail because all the alleged facts and circumstances were not proved, if such as were proved made out a crime though of an inferior degree. As was said by Judge DENIO in Dedieu v. People (22 N.Y. 178): 'It was a well-established principle [at...

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