I concur with Judge GRAY in the affirmance of the order appealed from.
Stripped of any collateral and immaterial considerations, such as that of the consequences which may result to the magistrate issuing a warrant without any legal basis therefor, the naked question is whether any evidence was presented to such magistrate which showed reasonable ground for believing that the defendant had committed the crime of larceny. Unquestionably if there was no evidence justifying the inference of such guilt, the magistrate was without jurisdiction and the relator should be discharged.
This court seems to be wholly or practically unanimous in the opinion that the evidence presented to the magistrate would not be sufficient to sustain a conviction of the defendant for the alleged crime and that he should be discharged if convicted thereon. The nature of this case, the attention which it has received and the facts and circumstances disclosed render not at all violent the presumption that the district attorney has now presented all of the evidence within his reach, and, therefore, it is quite probable that the really practical question involved is whether the relator shall be discharged at the present or at a subsequent stage of the proceedings. But however this may be, it will be conceded, as is argued in behalf of the appellants, that if even a slight degree of evidence of the relator's guilt was produced — "something *Page 425 upon which the judicial mind was called upon to act in determining the question of probable cause," the magistrate had jurisdiction, the warrant was valid and the order appealed from should be reversed.
We are all agreed upon certain fundamental principles pertaining to this case. The contribution by the president of the New York Life Insurance Company from its funds of $50,000 to a political campaign committee, even in the absence of any statutory prohibition, was absolutely beyond the purposes for which that corporation existed and was wholly unjustifiable and illegal. And while the contribution was suggested and made by the authority and direction of the president of the company rather than by the relator, still the latter was so a party to the execution of the act that he must be regarded as having aided and abetted it, and, therefore, is criminally responsible if a crime was committed.
Further than this, the assumption will be made without critical analysis of its correctness in all respects, that because the relator understood when he advanced his own funds to Mr. Bliss that the same would be repaid to him with moneys of the corporation, he was from the beginning a party to the plan to appropriate such corporate funds to an unauthorized purpose, and that, therefore, when payment was made to him he did not occupy the position of a bona fide though mistaken claimant, and does not come within those provisions of section 548 of the Criminal Code which provide that it is a defense to an indictment for larceny "that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable."
But, confessedly, these facts and considerations alone are insufficient to justify the charge which has been laid against the relator. At the time of his arrest there was no statute making the contribution of corporate funds to political purposes of itself a crime, and, therefore, there must be some evidence that the relator in doing what he did was actuated by a felonious, criminal intent. It is agreed upon all sides that the crime of larceny may not be committed unintentionally, *Page 426 unconsciously or by mistake, but that in order to accomplish it the perpetrator must have the intent referred to. It may be difficult at all times exactly and satisfactorily to define this intent, but the requirement for it as applicable to this case means that when the relator took part in the appropriation of the moneys in question, he must have had in some degree that same conscious, unlawful and wicked purpose to disregard and violate the property rights of another, which the ordinary burglar has when he breaks into a house at night with the preconceived design of stealing the property of its inmates. There is, as there ought to be in the absence of statutory enactment, a long distance between the act which is unauthorized and illegal and which subjects the trespasser to civil liability, and the one which is legally wicked and criminal and which subjects the offender to imprisonment. It is on this point of criminal intent that I think the district attorney has failed to furnish any evidence whatever on which the magistrate might act, although the burden affirmatively rested upon him so to do.
At the outset it must be borne in mind that some of the circumstances which surround this charge are merely accidental and superficial, and not at all decisive. The fact that this contribution was made by the officers of one of those corporations whose management recently has been subjected to grave criticism, and even that it was made for a purpose properly subjected to condemnation and now absolutely prohibited, are of no legal significance. However public opinion or ethics might distinguish them, the legal principles which control the consideration of this case are the same which would be applicable if the president of a manufacturing corporation had contributed from its funds toward the erection of a church supposed to be for the benefit of its employees, or the officers of a railroad company had contributed its funds or the use of its property and transportation facilities for the temporary relief of the sufferers from some sudden and great calamity. We probably should be compelled to say in each case that the contribution was beyond the purposes of the *Page 427 corporation and unauthorized and illegal and the officers making the same civilly liable, but it certainly would be a matter of grave import to hold, in the absence of something else, that they might be prosecuted for stealing.
It, therefore, seems to me that we are justified in scrutinizing with care the depositions presented to the magistrate for the purpose of ascertaining whether they do in fact disclose any intent to commit a crime.
Part of the evidence produced consisted of a written statement made by the relator at the request of the district attorney and by the latter adopted deliberately and in its entirety as proof of the facts upon which a warrant should be issued. It affirmatively disproves the existence of any criminal intent upon the part of the relator. It recites the facts which led him to make advances from his personal funds in the first instance and which attended his repayment afterwards, and distinctly disclaims any purpose to violate the law or to act otherwise than for the benefit of the corporation.
But it may be said that the magistrate was at full liberty to believe or reject this statement in whole or in part. It seems to me that this is too broad a statement of the law. Various authorities, like Becker v. Koch (104 N.Y. 394) andPresident, etc., Manhattan Co. v. Phillips (109 N.Y. 383), may be found holding that upon the examination of an adverse witness, the party calling him is not as a matter of law bound by explanations or adverse statements which he may make, but that he may ask the jury to disregard the same. But an examination of these cases will show that the jury were permitted to disregard such explanations or statements only because they were contradicted by other facts appearing or by inherent probabilities. Moreover, it is well recognized that especial consideration has been accorded to the exigencies liable to arise upon the examination of a hostile witness where the party compelled to call him cannot anticipate the form which his evidence will take. The natural rules by which to measure the force of relator's statement in this case are those which have been framed in respect to the use of statements and *Page 428 admissions made by a party outside of the trial. In such a case the party attempting to use the admission knows beforehand just what it is and there is less need for liberal rules in his behalf than in the other case. It is well settled that where use is made in a judicial proceeding of a prior declaration the entire declaration at the time made so far as relevant must be taken together; a party may not utilize only so much of the declaration as is for his benefit, but he must also admit that which is against his interest and the whole must stand or fall together. If in a suit upon a note the plaintiff relies for evidence upon the statement of the defendant that he gave the note, he must also accept an accompanying declaration that the note has been paid in full and if this is all the evidence the statement stands as a whole and the proofs fail. (Carver v. Tracy, 3 Johns. 427; Wailing v. Toll, 9 Johns. 140; Credit v. Brown, 10 Johns. 364; Mumford v. Whitney, 15 Wend. 380; Rouse v.Whited, 25 N.Y. 170; Platner v. Platner, 78 N.Y. 90, 103.)
It is only where that part of the declaration which discharges the party making it is in itself highly improbable or is discredited by other evidence that the court may believe one part of the admission and reject the other. (Kelsey v. Bush, 2 Hill, 440.)
These rules are especially applicable and equitable in this case, for here the district attorney requested the relator to make the statement in question, and after the latter had done this with apparent fullness and frankness, waiving all those rights and privileges which he had in a criminal prosecution, the former official deliberately, after opportunity for full consideration, employed it as a proper statement of facts upon which the magistrate might act.
It seems to me that not only is there no evidence aliunde the statement which contradicts it in the respects wherein it is favorable to the relator, but that upon the other hand the depositions confirm it and indicate the absence rather than the presence of a criminal intent to steal the money of the corporation.
Concededly the relator derived no pecuniary gain from the *Page 429 expenditure. It does not appear that he had any personal or political end to serve by the contribution, but, so far as we know, individually, he may have been deeply interested in the success of some opposing party. He entered upon the plan of expenditure only at the instigation and request of the president of the company and not of his own original volition. While it appears that the president of the company did suggest this form of contribution as a method, good or bad, logical or otherwise, of deceiving and putting off other applicants for contributions, there is no evidence that the relator ever attempted to conceal his acts, but upon the other hand they were disclosed fully even to the criminal authorities when so requested. No request was made to the officers of the campaign committee for concealment of the fact which was known to them that this was a contribution from the funds of the insurance company. When the time for repayment arrived the president of the company, although accustomed by virtue of his general powers and without specific authority to make what were known as "disbursements upon executive order," disclosed to the entire finance committee of the insurance company what had been done by the relator and the purpose to repay him from the corporate funds, and while no formal resolution was passed upon the subject every member of such committee approved of such payment.
Some importance seems to be attached to the entries which were made upon the books of the company in respect to this repayment and to the fact that the check was made payable to the firm of which the relator was a member rather than to him personally. It affirmatively appears that the relator had no part in making or any knowledge of the entries upon the books of the company, and that the check in repayment was made under the direction of the president of the company rather than the relator.
These facts are all established and must be accepted by the prosecution as true, and there is wanting every one of those circumstances of personal gain, furtive secrecy in the commission of the act and of concealment after commission which, as *Page 430 essential elements, ordinarily attend the crime of larceny, and if there is any evidence here of a criminal intent it is found simply and solely in the fact that the officers of the corporation have contributed some of its funds to an unauthorized purpose. As already indicated it does not seem to me that this fact is sufficient to sustain the burden thus cast upon it.
In McCourt v. People (64 N.Y. 583) the plaintiff in error stopped at a house and asked the daughter of the owner for a drink of cider, offering to pay for it. She refused to let him have it, and he thereupon opened the cellar door, and although forbidden to do so by her, went in and drew some cider. He was indicted for burglary and larceny and it was held that the trial court committed error in refusing to direct his acquittal. It was said: "Every taking by one person of the personal property of another, without his consent, is not larceny; and this, although it was taken without right or claim of right, and for the purpose of appropriating it to the use of the taker. Superadded to this, there must have been a felonious intent, for without it there was no crime. It would, in the absence of such an intent, be a bare trespass, which, however aggravated, would not be a crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury." And then further, as applicable to the particular circumstances of that case, "There was not only an absence of the usual indicia of a felonious taking, but all of the circumstances proved are consistent with the view that the transaction was a trespass merely. To find this transaction a larceny it is necessary to override the ordinary presumption of innocence and to reject a construction of the prisoner's conduct, which accounts for all the circumstances proved without imputing crime, and to impute a criminal intention, in the absence of the ear marks which ordinarily attend and characterize it."
It is true that this was said with reference to the evidence produced upon a trial, but a decision denying as matter of law to given facts the requisite probative force must be applicable at any other stage where there is need for such proof. *Page 431