[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 231
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 232
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 233 This case is before us on the bare record, and the only question that can possibly arise is as to the legality of the conviction of Myer, one of the accused. It appears that Klein and Myer were jointly indicted for a grand larceny. Klein pleaded guilty of an attempt to commit grand larceny, and was immediately sentenced. Myer then was tried, and convicted of grand larceny, and sentenced. There can be no doubt that Klein, though indicted for a larceny, was legally convicted, on her own confession, of an attempt to commit the offense; and this is not now questioned by her counsel. But it is insisted that Klein and Myer being jointly indicted for the same larceny, after the former had been convicted of an attempt to commit it, the latter could not be legally tried and convicted of the full crime. Why not? The defendants, it is true, had been jointly charged in the indictment with committing a felony. Klein, on being placed on trial, was, by her own confession, convicted of an attempt to commit the offense, and judgment passed against her. *Page 234 Myer then stood alone on the record, as much so as if the People had, by a nolle prosequi, ended the record against her who had been his co-defendant. He had joined issue on the main charge by his plea, and when tried was sole defendant. It was clearly competent to try the issue, and if the evidence showed him guilty of the larceny, to convict him; and this without regard to the prior disposition of the case of his co-defendant in the indictment. It cannot be questioned that, being first tried, if the jury had acquitted her altogether, the verdict would in any way have affected the legality of the subsequent trial and conviction of Myer; nor could his case be legally affected by even a prior erroneous verdict against her. The conviction of Klein of an attempt to commit the larceny charged was no judicial determination of the offense that Myer had committed. Whether he had committed any offense remained to be tried, or whether only the offense of which his co-defendant in the indictment had been convicted.
The record is all that is before us, and that discloses that a man and woman were jointly indicted for a larceny. The woman was first tried, and convicted, on her own confession, of an attempt to commit the larceny, and judgment forthwith followed. The man was then tried by a jury and convicted of the larceny. There was no error here, even if the woman continued after sentence to be a joint defendant with the man, unless we can decide, as matter of law (which we cannot), that the latter only committed the offense to which the former had been permitted to plead and be sentenced upon.
The judgment of the Supreme Court should be affirmed.