Upon this appeal we are called upon to determine the sufficiency of two indictments, each of which accuses the appellant, together with other defendants, of the crime of grand larceny in the first degree, committed by means of false pretenses. (Penal Law, section 1290, subdivision 1.) The acts alleged in each indictment suffice to constitute the crime of larceny by false pretenses if all such acts were committed in the state of New York. Only some of the acts, however, are alleged to have been committed in this state.
In the first indictment, which for convenience may be termed the Shinks indictment, it is alleged that the appellant and the other defendants conspired in the county of New York to cheat and defraud one William E. Shinks of the property thereinafter mentioned; that afterwards in the same county they feloniously deliberated upon the said defrauding of the said Shinks and upon the commission of the said fraud; that in pursuance and furtherance of said conspiracy and acting upon such deliberation they went from the county of New York to the city of Springfield, in the state of Massachusetts, where they fraudulently made to the said Shinks certain false pretenses set forth in the indictment; and that the said Shinks was induced by reason of the false and fraudulent pretenses made as aforesaid to deliver fifteen thousand dollars to the defendant at the city of Bridgeport in the state of Connecticut. In conformity with these specific averments the indictment further expressly alleges that the larceny therein charged "was committed in part in the county of New York aforesaid and partly in the said city of Bridgeport in the state of Connecticut and partly in the said city of Springfield in the state of Massachusetts, and that the acts constituting the said offense occurred some in the county of New York and others in the said city of Bridgeport *Page 590 in the state of Connecticut and others in the said city of Springfield in the state of Massachusetts."
The second indictment, denominated the Fairchild indictment, alleges that the appellant and the other defendants named therein in the county of New York, with intent to defraud one George W. Fairchild of the property thereinafter mentioned, made to him certain false representations specifically set forth in the indictment, as a result of which the said Fairchild was induced to deliver and did deliver $25,000 to the defendants at the city of Philadelphia in the state of Pennsylvania. This indictment also expressly alleges "that the said larceny was committed in part in the county of New York aforesaid and partly in the said city of Philadelphia in the state of Pennsylvania and that the acts constituting the said offense occurred some in the county of New York and others in the said city of Philadelphia."
From this statement it is apparent that the entire crime of larceny by false pretenses as defined in the New York statute was not committed within the territory of the state of New York. Only parts of the crime were committed here; the consummation took place elsewhere.
The question presented by the demurrers to the indictment, therefore, is whether under such circumstances the offender is punishable under the laws of the state of New York in their present form.
The statutory provision relied upon as authority for such punishment is subdivision 1 of section 1930, the whole of which section reads as follows:
"§ 1930. What persons are punishable criminally.
"The following persons are liable to punishment within the state:
"1. A person who commits within the state any crime, in whole or in part;
"2. A person who commits without the state any offense which, if committed within the state, would be larceny under the laws of the state, and is afterwards found, with any of the property stolen or feloniously appropriated within this state; *Page 591
"3. A person who, being without the state, causes, procures, aids, or abets another to commit a crime within the state;
"4. A person who, being out of this state, abducts or kidnaps by force or fraud, any person contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this state, and is afterwards found therein;
"5. A person who, being out of the state and with intent to cause within it a result contrary to the laws of this state does an act which in its natural and usual course results in an act or effect contrary to its laws."
In considering the meaning of subdivision 1 — "A person who commits within the state any crime, in whole or in part" — the judge of the Court of General Sessions who passed upon the demurrers held that this provision contemplated a crime, the whole of which was committed within the territorial limits of New York; and that the words "in whole or in part" referred to thequantum of the offender's participation in the crime. In other words, he thought that under this subdivision a person could not be held liable for larceny under our law unless the whole larceny was committed here, but that he might be liable if he had committed only some of the acts necessary to constitute the crime — that is to say, that it was not essential to show that he had perpetrated the entire offense in order to render him punishable.
The Appellate Division, on the other hand, was of the opinion that the word crime in subdivision 1 of section 1930 means a series of acts which would constitute a crime as defined by the laws of New York, notwithstanding that some of the acts might have been done elsewhere. That court held that "this provision was designed to apply to the commission within the jurisdiction of this state of any essential part of a crime as defined by the laws of this state, even though other parts of the crime were committed elsewhere and it was consummated without the state."
Further on in the opinion of Mr. Justice LAUGHLIN it *Page 592 is said: "It was unquestionably competent for the legislature to declare such acts as those alleged to have been committed by the respondent and the other defendants within this state to be a crime, even though the conspiracy to obtain the money by fraudulent representation was consummated elsewhere."
One of the authorities cited in support of this view isCommonwealth v. Macloon (101 Mass. 1), where GRAY, J., said. "Whenever any act which, if committed wholly within one jurisdiction, would be criminal, is committed partly in and partly out of that jurisdiction, the question is whether so much of the act as operates in the county or state in which the offender is indicted and tried has been declared to be punishable by the law of that jurisdiction."
While the authorities and text writers generally recognize the existence at common law of jurisdiction to punish a wrongful act at the place where it takes effect (as, for example, to prosecute for murder in the state where the victim dies after being shot in another state), the cases are not so clear that jurisdiction may also be exercised in the absence of statutory authorization at the place where the wrong was initiated. Nevertheless, Mr. Bishop, in his philosophical work on the New Criminal Law (Volume 1, § 112), says: "Within well established principles it is competent for legislation to make punishable the whole of any offense wherever a material part was committed within the jurisdiction." The question is, whether this has been done in New York by the legislation under consideration.
The determination of this appeal really depends upon the meaning of the words "any crime" in subdivision 1, section 1930, of the Penal Law. The context, including all the other language in the same section, may properly be studied in order to ascertain the meaning of the expression in question, and we find in the very next subdivision a provision for the punishment of one who commits "without the state any offence which, if committed within the state, would be larceny under the laws of the *Page 593 state" if he is afterward found here with any of the stolen property. In order to ascertain whether a person is punishable or not under this second subdivision the court must inquire whether what he has done in another state would constitute larceny if done in New York. If it shall be ascertained that such acts would constitute larceny in New York, then the offender is punishable provided he is afterward found in New York with any of the stolen property in his possession. The effect of this enactment is really to invest the courts of New York with power to try and punish a person for a larceny committed in another state. It requires proof of the commission in another state of every act necessary to constitute the offense; the only additional requirement in order to render such an offender punishable here is that he shall subsequently be found in New York with some of the stolen property in his possession.
While the question is by no means free from difficulty and there are cogent arguments in support of a different construction, I have reached the conclusion that the phrase anycrime in subdivision 1 of section 1930 of the Penal Law means any offense which, if committed wholly within the state of New York, would constitute a crime against the laws of New York. Our law is made the test of criminality, and one who commits part of such offense here and part elsewhere is punishable here. I think this is the natural meaning of the language used in the statute, and I can find no reason which ought to constrain us to interpret it otherwise.
It is objected that this view treats the subdivision in question as the definition of a crime or class of crimes, while the title of the article in which it occurs (Article 174, Punishment) and that of the section itself, "What persons are punishable criminally," hardly justify the idea that the legislature intended to define any criminal offense therein. This objection is answered by the unquestionable character of subdivision 2 which certainly defines larceny committed without the state followed by the asportation of the stolen goods hither as constituting *Page 594 larceny under our law. If one subdivision of the section is a definition of a crime, why may not another be? A little further on in the same article we find a crime defined in section 1933, which is entitled "Punishment of acts committed out of the state," and which reads as follows: "A person who commits an act without this state which affects persons or property within this state, or the public health, morals, or decency of this state, and which, if committed within this state, would be a crime, is punishable as if the act were committed within this state."
Of course the general rule is that the criminal courts of one state take no cognizance of acts committed in another state. "Our legislature has no extraterritorial jurisdiction; and when it forbids, in unqualified terms, the doing of an act, it must always be understood that the thing is only forbidden within this state." (BRONSON, J., in Charles v. People, 1 N.Y. 180, 184.)
The proposition, however, that our legislature has no extraterritorial jurisdiction in criminal matters is only true where it is asserted with reference to an offense in its entirety. There are specific instances in which the legislature has undertaken to exercise such jurisdiction in respect to an offense only a part of which has been committed in this state. For example, it is provided by section 1047 of the Penal Law that a person is guilty of murder in the second degree and may be indicted, tried and convicted in any county of this state "who, by previous appointment made within the state, fights a duel without the state, and in so doing inflicts a wound upon his antagonist, whereof the person injured dies." Here the principal ingredient of the offense, the killing of the defendant's antagonist, is committed wholly within territory outside the state of New York, and yet the crime is made punishable as murder here, although the only ingredient thereof which occurred in New York was the previous appointment to fight the duel.
Section 1930 of the Penal Law had its origin in the proposed Penal Code prepared by David Dudley Field, William Curtis Noyes and Alexander W. Bradford as *Page 595 Code commissioners, and submitted to the legislature in December, 1864. It appeared therein as section 15 and read as follows:
"§ 15. The following persons are liable to punishment under the laws of this State.
"1. All persons who commit, in whole or in part, any crime within this State;
"2. All who commit theft out of this State and bring or are found with the property stolen in this State;
"3. All who, being out of this State, abduct or kidnap, by force or fraud, any person contrary to the law of the place where such act is committed, and bring, send or convey such person within the limits of this State, and are afterwards found therein;
"4. And all who, being out of this State, cause or aid, advise or encourage, another person to commit any act or be guilty of any neglect within this State which is declared criminal by this Code, and who are afterwards found within this State."
In their note to this section the commissioners say that the principles embodied therein are presented from a somewhat different point of view in the reported Code of Criminal Procedure previously prepared, coupled with provisions distinguishing the proper counties for the trial of offenses. "But," they add, "the jurisdiction of the state over offenses planned or in part committed outside its boundaries, ought to be asserted in this Code unless elsewhere enacted." This language certainly indicates an intention in the minds of the distinguished lawyers who framed this law to make an offense cognizable as a crime here when any part thereof was committed here.
For the reasons stated in addition to those given by Mr. Justice LAUGHLIN at the Appellate Division I am satisfied that these indictments should be upheld.
COLLIN and HOGAN, JJ., concur with CUDDEBACK, J., and WERNER, J., concurs in result, in memorandum; HISCOCK and MILLER, JJ., concur with WILLARD BARTLETT, Ch. J.
Ordered accordingly. *Page 596