People v. Mitchell

• Decision Date: 04 October 1901
• Parties: PEOPLE v. MITCHELL.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 604

61 N.E. 182

PEOPLE

v.MITCHELL.

Court of Appeals of New York.

Oct. 4, 1901.

Appeal from supreme court, appellate division, Fourth department.

James R. Mitchell was convicted of grand larceny in the second degree, and from a judgment of the appellate division (63 N. Y. Supp. 522) affirming the same, he appeals. Affirmed.

The defendant was indicted by the grand jury of Erie county for ‘the crime of grand larceny in the second degree, committed as follows, to wit: That the said James R. Mitchell did, on the 17th day of August, in the year 1899, at the city of Buffalo, in the county of Erie, become the bailee and agent of Elmer B. Allen, and as such bailee and agent then and there received into his possession, custody, and control certain goods, chattels, and personal property of the said Elmer B. Allen, the true owner thereof, to wit, one horse, of the value of fifty dollars; one buggy, of the value of thirty dollars; one set of harness, of the value of ten dollars. That thereafter, and while the said James R. Mitchell still continued in possession of such personal property, received as aforesaid, and the said James R. Mitchell having caused the said property to be brought to the town of Lewiston, in the county of Niagara did, on the 18th day of August, in the year 1899, at the town of Lewiston aforesaid, with force and arms, feloniously appropriate the said goods, chattels, and personal property to his own use, with intent to deprive and defraud the said Elmer B. Allen of the same, and of the use and benefit thereof, and the same goods, chattels, and personal property of the said Elmer B. Allen did then and thereby feloniously steal, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.’ The issue formed by the defendant's plea of not guilty when tried in the supreme court resulted in a verdict of ‘guilty as charged in the indictment.’ His counsel thereupon moved ‘for an arrest of judgment on the ground that this court has no jurisdiction in this case,’ but the motion was denied, and he was sentenced to state's prison for two years. Upon appeal to the appellate division the judgment of conviction was affirmed, two of the justices dissenting, and the appellant now comes here.

Cullen, O'Brien, and Landon, JJ., dissenting.

David Gray, for appellant.

Thomas Penney and C. W. Sickmon, for the People.

PER CURIAM.

We think the judgment appealed from should be affirmed for the reasons given by the learned appellate division in its opinion. While it does not appear to have been of any importance in this case, it may be of great importance in some cases that the power to change the place of trial for convenience of witnesses, upon the application of the defendant, should be conferred upon the proper court in all criminal actions where the indictment alleges that the crime was committed partly in one county and partly in another, or in any case arising under section 134 of the Code of Criminal Procedure. We therefore adopt the suggestion to that effect made by Judge CULLEN in his dissenting opinion.

The judgment of conviction should be affirmed.

CULLEN, J. (dissenting).

But one question is presented on this appeal-the jurisdiction of the grand jury of Erie county to indict the appellant for the offense of which he was convicted. The indictment charges that the appellant, on a day specified, at the city of Buffalo, in the county of Erie, became the bailee and agent of one Elmer B. Allen, and as such bailee then and there received into his possession the custody or control of certain chattels of said Allen; that thereafter, on a day specified, at the town of Lewiston, in the county of Niagara, he feloniously appropriated such chattels to his own use, with intent to defraud and deprive the said Allen of the use and benefit thereof. After conviction the defendant moved in arrest of judgment, which motion was denied. Section 323 of the Code of Criminal Procedure provides that the defendant may demur to the indictment when it appears upon the face thereof: ‘(1) That the grand jury, by which it was found, had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county.’ Section 331 of the same Code provides that this objection may be taken in arrest of judgment. Therefore, if the indictment fails to show that the offense of which the appellant was convicted was committed in the county of Erie, or its prosecution in that county authorized by statute, the judgment must be reversed. It is conceded that prior to the enactment of the Code of Criminal Procedure the indictment could not have been sustained. At common law the general rule was that criminal offenses must be prosecuted in the county where the crime was committed. 4 Bl. Comm. 305. ‘Even the king cannot, by charter, authorize the trial of an offense in another county.’ 1 Chit. 190. This rule was regarded as one of the safeguards of the liberties of the subject. 4 Bl. Comm. 349, 350. Under the federal constitution every prosecution for a crime against the United States must be had in the state and district in which the crime was committed. Similar provisions are found in the constitutions of many of our sister states (Massachusetts, New Hampshire, Tennessee, Wisconsin, and Nebraska). In this state the matter is not the subject of constitutional regulation, but the rule and practice have always obtained with use, except in certain cases, specified by the statute, where public needs have required a departure. That it was not intended by the Code of Criminal Procedure to make a radical innovation in the practice is apparent from the provisions of sections 323 and 331, already cited, which allow the objection that the grand jury had not territorial jurisdiction to inquire into the offense to be raised in arrest of judgment even after trial and conviction.

The judgment in this case has been upheld by the learned appellate division (by a divided court) on the ground that section 134 of the Code of Criminal Procedure authorized the prosecution of the offense in Erie county. That section reads: ‘When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.’ The offense which the appellant committed is defined by subdivision 2 of section 528 of the Penal Code, which makes an appropriation to his own use by a bailee or agent of property of his bailor or principal, then in his possession, larceny. It is argued by the learned appellate division that it was necessary, to constitute the offense under this provision of the statute, that the appellant should receive into his possession the property of his bailor; that such receipt was an act ‘requisite to the consummation of the offense,’ within the terms of section 134; and that hence the appellant might properly be prosecuted in the county in which that act was committed. In this view I cannot agree. The possession of the chattels which is necessary in order that the offense might be committed is not an act...