Wills v. People

By the Court, Mitchell, J.

The plaintiffs in error were indicted and found guilty of feloniously receiving and having, in the city of New-Yo.ik, certain goods knowing that they were stolen. Crane, the owner of the goods, proved that they were stolen, and that he found them afterwards at the house of S. Emberson, the principal witness in the cause. *497 This .alone might lead to the impression that Emberson was an accomplice in the stealing; it might be, however, that he had been employed by Crane to discover and obtain the property. It was proper, therefore, to prove how he became connected with the business, and Emberson was therefore properly allowed to testify that he had, when he went to Wills’ office or store, a memorandum of the goods and that he had procured it from Mr. Crane one or two days before he went to Williamsburgh for the goods, and that when he bought the goods of the prisoners he paid them $2000, which money he got in a check from Mr. Crane. Crane also testified that he had written a letter to Emberson. This evidence shows that Emberson, instead of being the accomplice of the prisoners, was the agent of the owner of the goods, aiding him to recover them. His testimony, for this reason, is admissible without corroboration.

A motion was made to the court to discharge Conley, on the assumption that there was no proof against him. It is too clear for dispute, that there was evidence to j ustify the jury in convicting Wills. Wills and Conley were in the same store, at the corner of Broadway and Worth-street, consisting of two rooms in a line, and a back or private office. Both were there on the tenth of January, when Emberson was there, and on the eleventh. The first day Wills took Emberson into the back office and asked him if he would buy stolen goods. It does not appear that Wills took Emberson to the back office on the second day, and it does appear that Emberson saw Conley as well as Wills at the store on that day, on two occasions; first, as he was going down town, and afterwards, on his return, at eleven, A. M., and it would seem that Conley was present at all the conversation on this day, when Wills asked Emberson if he would buy, and said he would show samples of them; the witness, speaking of his return to the store a little after eleven o’clock, says: “ I saw Wills and Conley ; I asked again to see samples of the goods; he” (Wills) “sent Conley after *498 them ; he told Conley to be careful that any one was not watching; he” (Conley) “was gone about fifteen minutes; he then came in with samples buttoned up inside of his coat; he” (Conley) “went into a private room, and left them there; Wills and I went in and examined them ; he locked the door.” Emberson, on cross-examination, said “that when Wills sent Conley for the samples, he told him to be careful if Pincus was watching him.” The locking of the door, the direction to Conley to be careful that any one was not watching; to be careful if Pincus was watching him, although acts of Wills, were done, the first in the presence of Conley, and the others in speaking to him, and showed to him that the transaction was one that needed concealment, and was probably criminal. His acting under such orders, and his concealing the samples by buttoning them inside of his coat, and taking them into the private office, were strong evidence that he knew the business of his employer, and that the goods were to be concealed, and that he was to be careful that he was not watched, because they had been stolen. Secrecy and" concealment have always been evidences of consciousness of guilt. In addition to this, Conley, when searched, had on him this memorandum, which corresponded in general description with the stolen goods, although one of them contained some articles in addition ; and Pincus, in his testimony for the defence, speaks (as Emberson did in substance, for the prosecution) of the store as “their place of business,” after saying he had known Wills and Conley for about two years. The motion to discharge Conley was properly denied.

A motion to dismiss the case, on the ground that it did not appear that either of the prisoners bought or received any of the property within the city of New York, was also properly overruled. The samples were received by Wills here from Conley, after Conley had been absent but fifteen minutes to get them ; that was evidence that he did not get them from Williamsburgh, but within the county of New *499 York; and although the bulk of the articles was then in Williamsburgh, it was very probable that all were received here, and the bulk removed there for concealment, until the contrary should be proved. In this city was the prisoners’ store, where they transacted their business in form, in loaning money on goods pledged. The house in Williamsburgh was only a place, apparently, for storing and concealing the goods.

On behalf of the prisoners, a witness was allowed to testify that he was at Wills’ store about the middle of the second week in January, when a man came in with samples of goods, consisting of bosoms, embroidered collars, and dark or black veils and babies’ waists, and said he wanted to raise two thousand dollars on them. The court refused to allow him to answer the question, “Did he say anything as to the manner in which he became possessed of the property; and if so, what did he say?” In the case of .Eando, this court at the February term, by a majority vote, held that a very similar question could not be put. It may well be that where the question is whether, at the time when goods were received, the receiver knew that they were stolen, and the inquiry is merely as to his knowledge, and all that is then done in acts may be proved, that all that is then said, which could have influenced his opinion, may also be proved. But it is deemed most proper -not to treat this as an open question here, and to leave it to a higher court to examine.

The prisoners offered to .prove that, in a conversation between Wills and S. Emberson on the Eighth-avenue, Wills had said to Emberson that he, Wills, would not give three cents to settle the matter; that he wished to have the case fully investigated. This was offered, not as evidence admissible of itself, but to impeach and contradict Emberson. The declarations of Wills were not evidence of themselves in his behalf; Emberson’s testimony, that Wills had not said so, was brought out by the prisoners themselves on *500 cross-examination by them. A party cannot cross-examine a witness as to such matter, and then impeach by contradicting him. The original question was probably inadmissible ; if admissible at all, it could be only as a mode of impeaching the witness by collateral matter; and in such case, the party bringing out the first answer must abide by it. If the question had been as to what Emberson had said, and the thing said was a contradiction of'his previous testimony, the rule would be different: as if he had been asked if he had not said that Conley was not in the store when he went there, or that Wills had told him that he had loaned money on the goods, instead of saying, as Emberson testified in his direct examination, that they had been “pulled” or “ drawn;” then another witness might be called to show that Conley had said so, not with a view to contradict the cross-examination, but to contradict his testimony on the direct examination, the cross-examination being necessary only to give the witness an opportunity to explain the inconsistency between his testimony under oath and his prior out-door remarks; and, except for this reason, any other person being competent to testify to the contradiction.

The question, “ Was anything said by Wills as to what the property was doing at the store, 333 Broadway?” was properly excluded. It was not the proper mode of showing that he exposed the goods publicly, as is now suggested to have been the object of the question.

The judge was requested to charge the jury, that if they believed that the defendant first bought or in any way received the goods in Kings county, and afterwards brought them into New-York, and there exposed them for sale, they could not be convicted under this indictment.

The statute is, that the receiver of stolen goods “may be indicted, tried and convicted where he received or had such property, notwithstanding such theft was committed in another county.” (2 R. S., 726, § 43.) The revisers’ note *501 to this section is: “ New. In analogy to the rule which allows a prosecution for theft in any county where the stolen goods shall be carried. There is a similar English statute.” (3 R. S., 844, 845, 2d ed.) The English statute is, that the receiver may be prosecuted. “ in any county or place in which he shall have, or shall have had, any such property in his possession” (2 Russ. on Cr., 238), not using the word “ received” as our statute does. This shows that the natural meaning of our statute is its true meaning, and that it was intended to allow the trial in any county where the prisoner either received the property at first, or at any time after-wards had it. The words, “ or had,” are unmeaning without this interpretation.

The judgment should be affirmed.

Judgment affirmed.