People v. Peckens

• Citation: 47 N.E. 883,153 N.Y. 576
• Parties: PEOPLE v. PECKENS.
• Decision Date: 05 October 1897
• Court: New York Court of Appeals

153 N.Y. 576

47 N.E. 883

PEOPLE

v.PECKENS.

Court of Appeals of New York.

Oct. 5, 1897.

Appeal from supreme court, appellate division, Fourth department.

Charles O. Peckens appeals from a judgment by the appellate division (43 N. Y. Supp. 1160) affirming the judgment convicting him of the crime of larceny in the first degree, and affirming an order denying his motion for a new trial on the minutes of the trial judge. Affirmed.

The appeal also brings up for review the decision of the court disallowing the defendant's demurrer to the indictment. The defendant was indicted for the crime of grand larceny in the first degree, committed in violation of section 528 of the Penal Code. The indictment charged that on or about the 16th of September, 1895, at the city of Rochester, the defendant, Albert P. Wicks, Frank S. Johnston, and others to the jury unknown, entered into a conspiracy to cheat and defraud persons with whom they dealt by obtaining property without consideration, and defrauding vendors of the same, and by fraudulently selling and disposing of worthless mortgages, and cheating and defrauding the purchasers thereof; that on or about that day they connived, conspired, and confederated together to cheat and defraud the complainant, Frances E. Stewart, of her property, and to appropriate the same to their own use, and that, in the town of Manchester, in the county of Ontario, they did feloniously, fraudulently, and falsely pretend and represent to her that one of the confederates was acting for her as real-estate broker and commission agent in the sale of her property, which consisted of a house and lot of the value of $1,500, situated in the town of Manchester, Ontario county, and that another of the confederates desired to buy said property, and move to the village of Shortsville to live, and that in pursuance of such conspiracy and felonious, fraudulent, and false pretenses and representations, one of the confederates, under a false name, then and there agreed to purchase the complainant's premises for the sum of $1,900 cash, to be paid upon the delivery of a deed of the premises, with an abstract of title; that in pursuance of their fraudulent scheme, conspiracy, and confederation two of the confederates pretended and represented to the complainant that it would be necessary for her, or some one in her behalf, to go to the city of Rochester with her deed and abstract of title, to consummate the purchase, and that the cash price of $1,900 would be paid and delivered to her or her representative on the presentation and delivery of the deed and abstract of title; that on the 17th day of October, 1895, at the town of Manchester, the complainant, relying upon the false and fraudulent pretenses and representations so made, and believing the same, made and executed her warranty deed of said lands and premises, and on the 19th day of October, 1895, delivered the deed and abstract of title to her husband, to be taken to Rochester, to be delivered to one of the defendant's confederates upon the payment by him to her husband of the sum of $1,900 in cash; that in pursuance of the conspiracy and confederation of the defendant and his co-conspirators, and of their felonious intention to deprive and defraud the complainant of the deed of her property and of the use and benefit thereof, and to appropriate the same to their own use, the defendant and his confederates feloniously, fraudulently, and falsely pretended and represented to the complainant's husband that the confederate who agreed to purchase the premises had been disappointed in getting his money, but was the owner of a certain mortgage made and executed by Thomas E. Payson and wife to said confederate in an assumed name to secure the sum of $2,000; that such mortgage was a first lien on a house and lot in Rochester; that the house and lot were valuable, and worth more than the amount of the mortgage; that the mortgage was a good, first-class mortgage of the value of $2,000; that the confederate who was the pretended owner of such mortgage was perfectly good and responsible, and would pay the sum of $1,900, and redeem such mortgage; that the complainant's husband, then and there believing such false and fraudulent representations and pretenses made by the defendant's confederates, and being deceived thereby, was induced by reason thereof to allow the other confederate, who fraudulently claimed to be acting for the complainant, to take the mortgage, and accept an assignment thereof, and to deliver to the confederate who agreed to purchase the property the abstract of title and the deed executed by the complainant to him of the premises owned by her; that the defendant and two of his confederates then and there feloniously and fraudulently obtained the abstract of title and the deed of said premises, which were the goods, chattels, and property of the complainant, by cover and aid of the false pretenses and representations aforesaid, and with intent to deprive and defraud the complainant of the same, and the use and benefit thereof, and to appropriate the same to their own use; that the defendant and his confederates executed or procured to be executed a deed of said property to one Reynolds; that the defendant, in pursuance of such conspiracy, caused the deed from the complainant to be recorded in Ontario county, where the lands were situated; that Reynolds made a deed of the property to one Wheeler, and Wheeler executed a mortgage to Reynolds, which transfer and mortgage were made for the fraudulent purpose of covering up the title to such property, and placing the same in the hands of an innocent party; that, in pursuance of such conspiracy, all of said conveyances were brought by the defendant to the clerk's office of Ontario county, and caused to be recorded therein for that purpose; that in fact the defendant's confederate was not acting for the complainant, but was conniving and confederating with the defendant and his other confederates to cheat and defraud her out of her property; that the confederate who agreed to purchase said premises, known as Frank J. Stinson, was not Frank J. Stinson, but Frank S. Johnston, and did not intend to purchase the premises, and pay $1,900 or any other sum in cash therefor, as was stated and represented, but was acting, conniving, confederating, and conspiring with the defendant and his other confederates to cheat and defraud the complainant of the property described, and of the use and benefit thereof, and to appropriate the same to their own use; that the said mortgage was not a first lien upon the house and lot described, and was not a first lien upon any lands whatever, was not a first-class mortgage, as was stated and represented, and was not of any value whatever; that the pretenses and representations so made by the defendant and his confederates were in all respects utterly false and untrue; that the defendant and his confederates, and each of them, at the time of making them, knew the same to be false and untrue; and that the defendant, with force and arms, the deed aforesaid and the title to the land and premises of the complainant, which was of the value of $1,500, then and there feloniously did steal and obtain, against the form of the statute in such case made and provided. This indictment was found by a grand jury of the county of Ontario, and sent to the county court of that county for trial. The defendant was arraigned thereon, and filed a demurrer thereto. The grounds of the demurrer were: ‘First. That the grand jury by which said indictment was found had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the said county of Ontario. Second. That the indictment was not conformed substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure, in that it does not state the acts of the defendant constituting the crime. Third. That more than one crime is charged in the indictment against this defendant, within the meaning of sections 278 and 279 of the Criminal Code, to wit, the crime of conspiracy and the crime of grand larceny. Fourth. That the facts stated do not constitute a crime.’ The demurrer was argued before the county court, and disallowed. The case subsequently came on for trial before that court, when the defendant was found guilty of the offense charged, and sentenced to imprisonment in the state prison for the term of eight years.

George Raines, for appellant.

Royal R. Scott, for the People.

MARTIN, J. (after stating the facts).

The appellant's first claim is that the offense charged in the indictment was not properly tried, or properly triable, in the county of Ontario, because no criminal pretense or act of the defendant which formed a part of the crime was charged to have been made or committed within that county. The indictment charged that the defendant, two other persons named, and others whose names were unknown, entered into a general conspiracy for the commission of crimes of the character of that alleged to have been committed by the defendant; that subsequently, in the county of Ontario, and in pursuance of such conspiracy, two of the defendant's confederates, with intent to cheat and defraud the prosecutrix, made to her certain material representations and pretenses, which were knowingly false and fraudulent, were relied upon by her, and by which she was induced to make her deed of certain real estate owned by her to be delivered to one of the defendant's confederates upon the payment in cash of the consideration named; that when the deed was made and presented, the defendant and his confederates, in the county of Monroe, made other false and fraudulent representations and pretenses, which were relied upon by the complainant's agent, to whom she had intrusted her deed, whereby they induced him to deliver it without payment of the purchase price, and to accept the...