People v. Lyon

• Decision Date: 02 June 1885
• Citation: 99 N.Y. 210,1 N.E. 673
• Parties: PEOPLE v. LYON.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 210

1 N.E. 673

PEOPLE

v.LYON.

Court of Appeals of New York.

Filed June 2, 1885.

Samuel Hand, for appellant, James L. Lyon.

Edward W. Hatch, for the People.

RAPALLO, J.

The defendant was convicted in the court of oyer and terminer of Erie county, under chapter 19, Laws 1875, upon an indictment charging him with having, on the fourteenth of September, 1875, fraudulently and feloniously obtained and received from Joseph Bork, then treasurer of the city of Buffalo, the sum of $2,200 of the funds of that city, held by said Bork as such treasurer. The second count of the indictment charged the defendant with having feloniously and wrongfully obtained said money and converted it to his own use. In both counts the defendant is charged as a principal, and there is no count charging him as an accessory. The money was not received by the defendant personally. It was deposited by Bork, or by his direction, with the banking house of Lyon & Co., of the city of Buffalo, of which firm Bork and the defendant were members, and was used by that firm in its business. The defendant had no knowledge of the particular transaction upon which he was indicted, he being at the time in the territory of Utah, where he had been for about a month before, and he did not return to Buffalo until about 10 days after the transaction. The prosecution, to make out their case against him, relied upon evidence that, on prior occasions, Bork had, with the knowledge of the defendant, used the funds of the city, in his hands as treasurer, in the business of the firm, and it was claimed that this evidence established that an understanding existed between Bork and the defendant that the city funds should be so used whenever required. The conviction rests upon this theory.

On the part of the defendant the point is taken that the offense of which the defendant was convicted is a felony; that there is no evidence upon which his conviction as a principal could be sustained, he not having been either actually or constructively present at the commission of the offense; that the most that could be claimed is that the evidence tended to prove that he was an accessory before the fact, and that, as such, he could not be convicted under an indictment charging him as a principal. On this ground, among others, the defendant moved in the court of oyer and terminer for a new trial, and, that being denied, he appealed to the general term of the supreme court. Both of those tribunals conceded that if the offense was a felony the conviction could not stand, and we concur in that view. Where a crime of the grade of felony is committed through the agency of a guilty instrument of participant, the instigator is regarded as an accessory before the fact, and must be indicted and tried as such. People v. Erwin, 4 Denio, 129;Irvine v. Wood, 51 N. Y. 224;Wixson v. People, 5 Parker, Crim. R. 121; Russ. Cr. 27; Whart. Crim. Law. § 114; McCarney v. People, 83 N. Y. 409, 412, 413.

In cases of misdemeanor, however, there are no accessories. All who aid or participate in the crime are principals, and the conviction was sustained in the court below on the ground that the offense created by the act of 1875, c. 19, was a misdemeanor only.

The act itself does not define in terms the grade of the offense, but it does prescribe the punishment, which is imprisonment in a state prison for a term not less than three years or more than ten years, or a fine not exceeding five times the loss resulting from the fraudulent act, or by both such fine and imprisonment.

Statutes creating new offenses do sometimes declare that they shall be felonious, but the instances, although numerous in England, are here rare. As a general rule, the grade of the offense is determined by the nature of the punishment prescribed. The term ‘felony,’ in the general acceptation of the English law, comprised every species of crime which, at common law, occasioned a total forfeiture of lands or goods, or both, and to which might be superadded capital or other punishment, according to the degree of guilt. 4 Bl. Comm. 94, 95. In England, the rule with regard to felonies created by statute seems to be that not only those crimes which are declared in express words to be felonies, but also those which are decreed to undergo judgment of life and member by any statute, become felonies thereby, whether the word ‘felony’ be omitted or mentioned. 1 Russ. Cr. 44, (4th Ed. 78;) Hawk. P. C. c. 40, § 1. The word ‘misdemeanor’ is applied to all crimes less than felonies, comprehending all indictable offenses less than felonies. Among these are included, in England, perjury, battery, libel, conspiracies, public nuisances, etc. 1 Russ. Cr. 45, (4th Ed. 79.) In this state forfeitures of property on conviction of crime have been abolished, and the common-law definition of felony is inapplicable; but the principle of determining the grade of the offense by the character of the punishment is recognized in the clearest manner. Many crimes which at common law were only misdemeanors are here felonies, and no instance can be found in which an offense which is declared to be a misdemeanorcan be visited with the punishment prescribed for a felony. Part 4 of the Revised Statutes, entitled ‘An act concerning crimes and punishments, proceedings in criminal cases, and prison discipline,’ covered, at the time of its enactment, the whole subject referred to in its title. Chapter 1, entitled ‘Of crimes and their punishment,’ is divided into seven titles, in which crimes are classified as follow: The first title is entitled, ‘Of crimes punishable by death;’ the second, third, fourth, and fifth titles relate to offenses ‘punishable by imprisonment in a state prison;’ the sixth title is, ‘Of offenses punishable by imprisonment in a county jail and by fines,’ and under this title are enumerated all offenses of the grade of misdemeanors. The maximum term of imprisonment for any of the misdemeanors enumerated in this title, with but a single exception in section 36, is one year's imprisonment in a county jail, while in many cases a much milder punishment is possible, and by section 40, 2 Rev. St. 679, it is provided that ‘every person convicted of any misdemeanor, the punishment of which is not prescribed in this or some other statute, shall be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding $250, or by both such fine and imprisonment.’ Every one of the offenses enumerated in this sixth title, c. 1, pt. 4, with the solitary exception of petit larceny, is therein declared in terms to be a misdemeanor; but there is not a single offense enumerated in the second, third, fourth, or fifth titles relating to offenses punishable by imprisonment in a state prison, which is, in terms, declared to be a felony, although among these offenses there are but few which were felonies at common law; the greater part of them, such as forgery, perjury, false pretenses, and many others, having been only misdemeanors at the common law.

Forgery was made a felony by statute in the reign of George II., first, by a temporary, and afterwards by a permanent, enactment; but, unless there has been some very recent change, perjury and false pretenses are still misdemeanors; while petit larceny, though a felony at common law, is only a misdemeanor in this state, notwithstanding that the degree of the crime is not expressly declared in the statute. It is obvious that the degree of the offense, according to the common law, does not afford any guide for the determination of that question in this state. The seventh title, c. 1, pt. 4, Rev. St., however, furnishes the rule by which the degree of the offense can be ascertained. This title contains ‘general provisions concerning crimes and their punishment.’ Section 30 of this title (2 Rev. St. 702) provides that ‘the term ‘felony,’ when used in this act or any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in a state prison.' Although, as has been already remarked, the term ‘felony’ is not used in any of the provisions of the Revised Statutes which declare the offenses punishable by imprisonment in a state prison, yet it is used in many other provisions relating to persons convicted of such offenses. For instance, sections 13 and 14, art. 3, tit. 4, c. 1, pt. 4, (2 Rev. St. 683,) provide that any person conveying into any place of confinement any disguise, or other thing, with intent to facilitate the escape of any prisoner detained for any felony whatever, or on a charge for any felony, or by any means aiding such a prisoner to escape, shall be punished by imprisonment in a state prison not exceeding 10 years. Section 15 of the same title provides that similar assistance to a prisoner confined for any criminal offense, other than a felony, shall be punished by imprisonment in a county jail not exceeding one year, or by fine, or boty. Section 6, tit. 7, (2 Rev. St. 698,) provides that every person who shall be an accessory to any felony before the fact, shall, upon conviction, be punished as a principal in the first degree. By section 19, (2 Rev. St. 701,) a sentence of imprisonment in a state prison for any term less than life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and private trusts or powers during the term of such imprisonment.By section 23, before its repeal, no person sentenced upon a conviction for felony was competent to testify in any cause unless pardoned; but no sentence on a conviction for any offense other than a felony rendered the convict incompetent. In all these cases there is no escape from the statutory definition of the term ‘felony.’

The same rule for determining what is a felony is preserved by the Penal Code which went into effect December 1, 1882. It declares (section 4) that a crime is either...