People v. Clark

• Decision Date: 25 June 1886
• Citation: 102 N.Y. 735,8 N.E. 38
• Parties: PEOPLE v. CLARK.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 735

8 N.E. 38

PEOPLE

v.CLARK.¹

Court of Appeals of New York.

June 25, 1886.

Appeal from a judgment of the general term supreme court, Fourth department, affirming a judgment of the court of sessions of the county of Onondaga on conviction of appellant under an indictment for the crime of feloniously, designedly, and by false pretenses and representations obtaining the signatures of certain persons to a written instrument, with intent to defraud.

Wm. G. Tracey, for appellant, James W. Clark.

C. H. Lewis, Dist. Atty., for the People.

FINCH, J.

The defendant was convicted upon an indictment which charged him with having obtained a conveyance of land from one John Fay by false pretenses, which consisted in inducing him to accept, as part payment, a mortgage for $2,000 upon 100 acres of land in Ulster county, which the prisoner falsely described in many material respects, and which were in fact of very trifling value.

The party defrauded was a witness for the prosecution, and on cross-examination was asked a series of questions, the purpose of which was to extract from him an admission that before the bargain was closed he had been advised by his counsel not to accept the mortgage without an examination of the land. If he made the admission, it would bear upon the question of his own possible negligence; and, if he denied it, there would be left the opportunity for contradiction. The evidence was rejected, and the general term, conceding that this was error, answer it by saying that the excluded fact was afterwards fully proved. On cross-examination of Mr. Ames, who was Fay's counsel in the transaction, he testified distinctly and fully to the fact of having given him such advice; and at the close of the case for the prosecution the prisoner's counsel rested upon the undisputed fact thus established as one ground of his motion for the discharge of the prisoner. During the further progress of the trial the same thing was again proved by a partner of Ames, and by a clerk in their office. But, at least, the fact was in part disputed, and it is that circumstance which the learned counsel for the appellant contends defeats the force and correctness of the argument that no injury resulted from the original rejection of the evidence. The dispute, however, arose in this way: The prosecution recalled Fay, and put to him the substantial question which had before been held improper. This time the defendant had the opportunity to secure an answer from the witness to the very inquiry which he had made in vain. If he wanted an answer, he could have had it, but he objected, and strove to prevent an answer being given. He partially succeeded, and by reason of his objection the question was narrowed to the inquiry as to the advice given by Ames in a particular conversation, and, in reply, the witness denied that it occurred before the consummation of the bargain. The defendant thus stands before us complaining that a question was not answered which was answered in part, and, so far as not answered, was left in that situation by his own objection. The two purposes originally sought were reached. The prosecutor was made to answer whether he received the advice claimed before the bargain was closed, and his denial exposed him to the contradiction as fully brought out as under any circumstances was possible. It is quite clear that no harm resulted from the original error, and that it became entirely immaterial.

It was in part a theory of the defense that Fay's contract of sale was not with the prisoner, but with one...