People v. Rosenthal

• Decision Date: 08 February 1910
• Parties: PEOPLE v. ROSENTHAL.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 394

90 N.E. 991

PEOPLE

v.ROSENTHAL.

Court of Appeals of New York.

Feb. 8, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Benjamin Rosenthal was convicted of receiving stolen goods without diligent inquiry, and from a judgment of the Appellate Division affirming the conviction (118 N. Y. Supp. 1132), he appeals. Affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department, affirming a judgment, entered upon a plea of guilty, convicting the defendant of the crime of receiving stolen goods without diligent inquiry; also from an order affirming three orders, the first made by the county judge of Monroe county directing a resubmission of the case to a grand jury, the second from an order of the Monroe County Court denying a motion to quash the indictment, and the third from an order of said court denying a motion in arrest of judgment.

On the 26th of March, 1908, the defendant was indicted by a grand jury in attendance at a Trial Term of the Supreme Court sitting in the county of Monroe for the crime of criminally receiving stolen property, in that he, being a junk dealer, purchased stolen copper wire belonging to a telephone company without ascertaining by diligent inquiry that the person or persons selling the same to him had a legal right to do so. The indictment was sent to the Monroe County Court for trial, and on the 7th of May, 1908, while the indictment was still in force, but before any plea had been entered or motion made in relation thereto, upon the application of the district attorney, founded on his own affidavit, the county judge of Monroe county made an order at chambers directing that the charge be resubmitted to the grand jury of that county then in session in connection with a Trial Term of the Supreme Court. On the 23d of May a second indictment was found containing four counts, the first of which was for substantially the same crime described in the indictment found on the 26th of March preceding. After the second indictment had been sent to the County Court, and on the 11th of June, 1908, a motion was made to quash the same upon the ground that the grand jury had no jurisdiction to find it. On the 18th of June said motion was denied, and on the 15th of December the defendant pleaded guilty to the first count of the second indictment; the other three counts being dismissed. When arraigned for sentence, he made a motion in arrest of judgment upon the ground that the court had no jurisdiction over the subject-matter of the count in the indictment to which he had pleaded guilty, and that the facts stated in that count do not constitute a crime. The motion was denied, and the court sentenced the defendant to be imprisoned in the Monroe county penitentiary for two months, and, in addition thereto, that he pay a fine of $250, or, in default thereof, that he be committed to said penitentiary for 30 days additional. Thereupon the defendant appealed from the judgment of conviction, from the order denying the motion in arrest of judgment, from the order of the Monroe county judge resubmitting the case to the grand jury, and from the order denying his motion to quash the indictment. The Appellate Division unanimously affirmed the judgment and each of said orders, and the defendant now appeals to this court.Percival De Witt Oviatt, for appellant.

Freeman Fithian Zimmerman, for the People.

VANN, J. (after stating the facts as above).

The indictment in question was found under section 550 of the Penal Code as amended in 1903 by chapter 326 of the Laws of that year. As amended it reads as follows: ‘Sec. 550. Criminally receiving property.-A person, who buys or receives any stolen property, or any property which has been wrongfully appropriated in such a manner as to constitute larceny according to this chapter, knowing the same to have been stolen or so dealt with, or who corruptly, for any money, property, reward, or promise or agreement for the same, conceals, withholds, or aids in concealing or withholding any property, knowing the same to have been stolen, or appropriated wrongfully in such a manner as to constitute larceny under the provisions of this chapter, if such misappropriation has been committed within the state, whether such property were stolen or misappropriated within or without the state, or who being a dealer in or collector of junk, metals or second-hand materials, or the agent, employé or representative of such dealer or collector, buys or receives any wire, cable, copper, lead, solder, iron or brass used by or belonging to a railroad, telephone, telegraph, gas or electric light company without ascertaining by diligent inquiry, that the person selling or delivering the same has a legal right to do so, is guilty of criminally receiving such property, and is punishable, by imprisonment in a state prison for not more than five years, or in a county jail for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.’ The part printed in italics was added by the amendment, no other change being made, and the section, as thus amended, was re-enacted in the Penal Law (Consol. Laws, c. 40) § 1308. The defendant claims that the amended portion does not describe an offense and that it is unconstitutional, because it applies only to junk dealers, protects only the property of railroad, telephone, telegraph, gas and electric light companies, makes a test of criminality something which can seldom be ascertained by the junk dealer, and imposes on him the possibility of a criminal prosecution in connection with every transaction he undertakes, as well as the necessity of ascertaining the legal right of the seller, regardless of the fact whether or not the property has been the subject of a larceny.

The first question to be considered is, What does the amendment mean? The entire section, including the amendment, consists of a single sentence divided only by commas. It provides for the punishment of any person who receives stolen property knowing it to have been stolen, or who corruptly and for a consideration conceals any property knowing it to have been stolen, and then, in the same...