The defendant appeals from, a judgment convicting him of grand larceny in the first degree.
The basis of the charge against the defendant, as redeveloped upon the trial, was the allegation that he conspired with one Clark, described as a curb broker, one Persch and one Sherwood, the cashier of a stock brokerage firm, to steal certain stock, the property of one Heinze. The scheme devised to obtain possession of the stock was bold and ingenious, and ' involved the intervention of the officers of a trust company. It was not charged that defendant actually and physically stole the stock. .He was claimed to be what, in former days, would have been termed “an accessory before the fact,” but was charged and indicted as a principal under the provisions of section 29 of the Penal Code (now Penal Law, § 2). He was indicted" alone, Clark, Sherwood, Persch and Field being separately indicted. Defendant’s indictment does not mention any one else as having been concerned in .the larceny, and does not explain that defendant is charged with the crime because he aided and abetted others in committing it. It simply charges him, substantially in the words of the statute, with having committed the crime. It is strongly urged that such an indictment is insufficient under the circumstances of the case, and that the indictment should have alleged who is said to have physically committed the crime. The Court of Appeals in People v. Bliven (112 N. Y. 79) seems to have entertained a contrary opinion, and it is a well-known fact in the legal history of this State that the same contentions now made by the defendant were vehemently, urged upon the Court of Appeals on the motion for a reargument of the appeal from the conviction for murder in People v. Patrick, and were necessarily overruled when the motion for reargument was denied. (People v. Patrick, 183 N. Y. 52.) We are of the opinion, therefore, that this objection to the indictment is not well founded.
We have examined and re-examined the record with great care, and with the aid of exhaustive and able briefs on the part both of the People and of the defendant. We do not consider it necessary to recite at length the evidence upon which the jury reached.their verdict. To prove the conspiracy
The record bristles with defendant’s exceptions, of which nearly 400 were taken during the course of the trial. Comparatively few of them are now relied upon, and of these some present no question requiring discussion here. Much stress is laid upon the fact that the court admitted evidence to be introduced concerning what is characterized as a different and distinct transáction. The conspiracy charged was that defendant and others had devised a plan to actually loan ITeinze a considerable amount of money upon collateral security of a value much larger than the sum loaned, and then to dispose of the collateral. To carry out this scheme it was necessary to find a well-known stock exchange house, or a bank or trust company to “clear this loan,” as it was called, or, in other words, to become the ostensible lender, as Heinze was unwilling to intrust his securities to an irresponsible lender. To obtain a firm or corporation to “clear this loan” which Would be of sufficient reputation to satisfy Heinzé, and at the same time to be sufficiently pliable to deliver the securities to the conspirators, was not the least difficult feature of the scheme. The evidence objected to was that of a broker named Schwed,. who testified that defendant solicited him to assist in finding a suitable intermediary. In our opinion the evidence was relevant as tending to show the nature of the conspiracy upon which the defendant had embarked, and the preparations which he made to carry it out. Evidence of preparation to commit a crime stands upon the same footing as evidence of previous attempts to commit it, and is always relevant. Thus in murder cases it has been held relevant to show that the accused redeemed a pawned revolver (People v. Scott,, 153 N. Y. 40), or practiced shooting at a mark (People v. McGuire, 135 N. Y. 639; People v. Youngs, 151 id. 210), or, where the crime was committed by stabbing, ground a knife (People v. Tice, 131 N. Y. 651). In the present case Schwed’s testimony merely tended to show that the defendant had endeavored to find a tool to use in committing the crime. It is contended that the court erred in admitting in evidence a statement made by one of the witnesses for the People (Clark) to his
The other exceptions to which we deem it proper to refer relate to those taken or endeavored to be taken to the refusals to charge as requested by the defendant,
It is very doubtful whether exceptions taken in this wholesale fashion raise any question of error. To submit so large a list of requests and then' interpose an omnibus exception amounts to little else than a trap “better adapted to confuse and trip a court, than to serve any purpose of justice. ” (People v. McCallam, 3 N. Y. Cr. Rep. 189, 198; affd., 103 N. Y. 587.) Counsel had been clearly and distinctly advised by the court that the reason for refusing to repeat- and recharge the several propositions embraced in the requests was “ that they are already covered in the charge. ” If some of the proper requests had been overlooked by the court, and thus not included in the charge, it was the duty of counsel to have called the attention of the court to the omitted propositions and ask specifically as to them that, the jury be instructed: (People v. Birnbaum, 114 App. Div. 480, 489.) Having failed to take this course, the defendant is not entitled as a matter of right to insist upon his exception, and we are not required, in consequence, to reverse the - judgment by reason of the exception unless we can clearly see- that the defendant has been preju
The other omissions to which our attention is called are those relating to the requests numbered 74 and 93, in which the court was requested to charge as to certain witnesses that: “If the jury believe that [the witness] wilfully testified falsely as to any material fact they are at liberty to disregard the entire testimony of [the witness] if they see fit.” This request is not covered by the main charge, but it is entirely certain that if counsel had been more explicit with the court and had directed its attention to the omission to charge as requested in this particular, the court would have instantly supplied the omission, probably stating the rule as it should be stated that the jury under such circumstances might, but need not, reject the whole testimony of the witness. We do not consider that the omission of this particular charge constitutes reversible error. The proposition embraced in the request is scarcely a rule of law, although its propriety has been affirmed in many cases. It is rather the statement of a rule by which the weight of evidence is to be tested — a rule derived from the experience of mankind both lay and legal. A jury, carefully selected for their intelligence and experience as this jury was, would undoubtedly apply this rule in considering how far a witness was to be believed, éven without a reference to the rule, by the court.
Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.