People v. Smith , 57 Barb. 46 ( 1870 )

By the Gourt, Johnson, P. J.

The motion made by the defendant’s counsel, when the people rested, and renewed at the close of the testimony in the case, was properly denied, in each ease. The substantial 'ground of the objection on each occasion was, that if the defendant was guilty of the larceny charged in the indictment, it was committed in connection with a burglary in which the larceny was merged, and that in such a case, there could be no indictment and conviction for the larceny as a separate and distinct offense. But there is no such rule. There is no merger, in such a case, which is available to the accused by way of defense, until there has been a trial and conviction for the greater offense. Burglary and larceny, charged in the same indictment as having been committed on the same occasion, is a compound offense, and upon the trial the party accused may be convicted of either one, without the other. Until the verdict and judgment, it can never be known, with certainty, whether the accused is guilty of either, much less of both. But until after con- ' viction there can be no such thing as a merger which constitutes a defense; especially where each ingredient of the compound is a felony. But where there has, in a case of that kind, been a conviction for the burglary, a plea of autre fois convict would be a good answer and defense to a subsequent indictment for the larceny which was committed at the same time and by means of the burglary. It is all the same felony, and the lesser is merged and satisfied in the conviction and punishment of the greater. It is then established by the verity of the record, that the accused is guilty of the burglary and has suffered the penalty therefor. The plea to the subsequent indictment for the larceny, of autrefois convict, admits of record the truth of the charge of larceny contained in the indictment, and tenders the issue that it is part of the same felony of which the defendant has once been convicted, on the trial of the indictment for burglary. (Arch. Cr. Pl. 88. The People v. McGowan, 17 Wend. 386.) It may well be, that the defendant here, as the motion and the argument in his behalf seem to admit, ought to have been indicted and convicted of the brglary instead of the larceny. But it is plain enough that the mere fact that he has not been so convicted, is no answer or defense to the larceny separately charged, and established to the satisfaction of the jury by the evidence. It would be a most dangerous doctrine to establish, that a defendant indicted for a felony may defend himself successfully and procure his acquittal by proving that he had at the same time committed a higher crime, which constituted a part of the same felony with that of which he stood charged by the indictment.

There can be no doubt, I apprehend, that where a person has been guilty of a burglary and a larceny at the same time, he may be indicted for either the burglary or the larceny, separately, and convicted of the offense charged. Whether, after having been indicted for one of such offenses only, and convicted upon that one, he could after-wards be indicted separately and convicted for the other, is quite another and different question, and one which could not legitimately arise until the second indictment. It is laid down, in some of the older authorities, that an acquittal, upon an indictment for a burglary, with intent to commit a larceny, but which does not charge the commission of a larceny, is no bar to a subsequent indictment for the larceny. The reason given is, that the defendant could not have been convicted of the larceny on the first indictment, inasmuch as it was not charged. (Arch. Cr. Pl. 88. 2 Hale, 245. Rex v. Vandercourt, 2 Leach, 716.) But if the first indictment, for the burglary, charges the commission of the larceny also, so that the defendant may be convicted of the larceny if the proof of the burglary is insufficient to establish that offense, but proves the other, the reason of the rule fails, and the rule with it. The acquittal would then be a bar to the subsequent indictment for the larceny.

But whatever may be the rule in regard to acquittals, there cannot, I apprehend, be two convictions, for separate acts, constituting the same felony. If it is all the same felony, one conviction is a bar to any other, for the offense, of whatever degree. Thus in Wrote v. Wigges, (4 Co. R. 403,) it was resolved that a conviction for manslaughter was a bar to a subsequent indictment for the murder of the same person; and in that case it is said that “it was resolved without difficulty in Holtroft’s case, that if a man commits murder, and is indicted and convicted, or acquitted of manslaughter, he shall never answer to any indictment for the same death, for all is one and the same felony, for one and the same death, although murder is, in respect of the circumstance of the forethought of malice, more odious.”

It was upon this principle that it was held in the case of The State v. Lewis, (2 Hawks, 98,) that a conviction for larceny was a bar to a subsequent indictment for the robbery which accompanied the larceny, and which was part of the same felony.

I am of the opinion, therefore, that the conviction for the larceny which was committed by means of the burglary, will constitute a bar to any subsequent trial and conviction of the defendant for the offense of burglary. It was all one transaction, and constituted but one felony, though a compound one.

There is no ground, however, in this case, for any presumption that the defendant will ever be called upon to answer any indictment for burglary. He was a witness in his own behalf, upon the trial, and testified to his entire innocence both of the larceny and burglary. And had he been indicted for the burglary and larceny, it is by no means certain in view of the character of the people’s principal witness, and of all the testimony together, that he would have been convicted of the burglary. He may be guilty of that, and may not be. But whether he was or was not, he was not entitled to be discharged, because it appeared on the trial that he probably was guilty of the higher offense also. There was no variance between the indictment and the proof. The indictment was for larceny, and the proof tended strongly to establish it.

[Monroe General Term, March 7, 1870.

The exception to that part of the charge, set out in the case, is not well taken. It is a mere general exception, without specifying any grounds of error. Such an exception is of no avail. There was no request to charge otherwise in any particular.

The conviction must therefore be affirmed, and the proceedings remitted to the court of sessions of Wayne county for judgment and sentence upon the conviction.

Johnson, J. C. Smith and Dwight, Justices.]