People v. Lammerts

• Decision Date: 02 October 1900
• Citation: 164 N.Y. 137,58 N.E. 22
• Parties: PEOPLE v. LAMMERTS.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 137

58 N.E. 22

PEOPLE

v.LAMMERTS.

Court of Appeals of New York.

Oct. 2, 1900.

Appeal from supreme court, appellate division, Fourth department.

John C. Lammerts was convicted of grand larceny in the first degree, and from a judgment of the appellate division affirming the judgment (64 N. Y. Supp. 1145) he appeals. Affirmed.

Daniel E. Brong, for appellant.

Abner T. Hopkins, for the People.

HAIGHT, J.

The indictment charged the defendant with the crime of grand larceny in the first degree, committed as follows: ‘The said John C. Lammerts, on or about the 13th day of April, 1898, at the city of Niagara Falls, within the county of Niagara, was then and there and at the time of the commission of the act and acts heretofore mentioned, was a public officer, to wit, county treasurer of the county of Niagara, and as such public officer had then and there in his possession, custody, and control two thousand five hundred forty-nine dollars and fifty cents of the goods, chattels, and personal property of the county of Niagara, of the worth and value of two thousand five hundred forty-nine dollars and fifty cents, but of what particular kind, character, or denomination are to this grand jury unknown, and cannot by them, with reasonable diligence, be ascertained, and for that reason cannot be given, did then and there, with intent to deprive and defraud the true owner of said property and of the use and benefit thereof, and to appropriate to himself, the said John C. Lammerts, and of other person or persons to this grand jury unknown, and cannot with reasonable diligence be ascertained, and for that reason cannot be given, willfully, unlawfully, and feloniously appropriate, secrete, withhold, take, steal, and carry away, contrary to 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 case was tried in the county court of Niagara county. The evidence tended to show that the defendant was the treasurer of Niagara county, and as such had on deposit with the Power City Bank of Niagara Falls moneys belonging to the county; that on the 13th day of April, 1898, he drew his check as such treasurer on the bank for $2,549.50, being a portion of the moneys of the county which he had on deposit, and personally took the same to the bank, and procured therefrom a draft on New York for that amount, payable to F. L. Lovelace, attorney. This draft the defendant delivered to Lovelace in satisfaction of a judgment which had been obtained against the defendant personally for that amount. The draft was subsequently paid by the bank, and the defendant's account, as treasurer, was charged with the amount of the check.

After the case was moved for trial, the defendant's counsel interposed a challenge to the array of the extra panel of jurors drawn, upon the ground that no return had been made by the officer summoning the extra panel. It appears that the case was moved for trial on the 20th of October, and at that time the court ordered an extra panel of 100 jurors drawn and summoned by the sheriff to attend the court on the 30th day of October, to which day the trial was adjourned. The jury box was brought into court, and the names of 100 jurors were publicly drawn therefrom, pursuant to section 1058 of the Code of Civil Procedure. On the morning of the 30th, at the opening of the court, the names of the jurors drawn for the extra panel were called, and those appearing answered to their names; but for some reason the sheriff did not file his return showing the manner in which each juror had been notified until some time in the afternoon of that day. Section 1048 of the Code of Civil Procedure provides that the sheriff must file the list of jurors ‘with the clerk of the court, at or before the opening of the term; with a return, endorsed thereupon, or annexed thereto, under his hand, naming each person notified, and specifying the manner in which he was notified.’ This section of the Code has reference to the regular panel of jurors drawn in advance of the time at which the court is appointed to be held. The extra panel of jurors in this case was drawn after the term of court had commenced, and, consequently, the return of the sheriff could not be filed at or before the opening of the term. Section 1171 of the Code makes provision for the procuring of talesmen in case a sufficient number of jurors do not appear to fill up a jury. Section 1174 requires the sheriff to notify the requisite number of such persons to attend forthwith, and to make return thereof as prescribed in section 1048; but, obviously, this could not require the return to be made at or before the opening of a term of court. The provision must, therefore, be construed as applying to the form and manner of the return, and not to the time. In this case the return was actually filed before the court overruled the challenge to the array, and before any juror had been selected and sworn to sit upon the trial. We think the challenge was properly overruled.

Complaint has been made with reference to the court's overruling the challenges by the defendant for bias of the jurors Hubbs, Silsby, and Peterson. Each of these jurors was subsequently excused under the peremptory challenge of the defendant. He did not exhaust his peremptory challenges in securing a full panel for the trial of the case. He therefore suffered no harm by the rulings of the court. People v. Scott, 153 N. Y. 40, 49,46 N. E. 1028;People v. Larubia, 140 N. Y. 87, 35 N. E. 412;People v. Decker, 157 N. Y. 186, 192,51 N. E. 1018.

We are thus brought to a consideration of the main questions in the case, and that is whether the indictment alleges a crime, and as to whether there was a variance between the proofs and the crime charged. It must be conceded that the indictment in this case was carelessly drawn, and that the questions raised by the demurrer interposed thereto are not free from difficulty. Section 528 of the Penal Code defines the crime of larceny, as attempted to be charged in the indictment, as follows: ‘A person who, with the intent to deprive or defraud the true owner...