People v. Cox

• Decision Date: 29 July 1941
• Parties: PEOPLE v. COX.
• Court: New York Court of Appeals Court of Appeals

286 N.Y. 137

36 N.E.2d 84

PEOPLE

v.COX.

Court of Appeals of New York.

July 29, 1941.

Appeal from Supreme Court, Appellate Division, First Department.

Charles E. Cox was convicted of grand larceny in the first degree and grand larceny in the second degree by the Court of General Sessions of the County of New York, which conviction was affirmed by the Appellate Division of the Supreme Court in the First Judicial Department, 261 App.Div. 946, 27 N.Y.S.2d 186, and he appeals by permission.

Affirmed. John C. McDermott, of New York City, for appellant.

Thomas E. Dewey, Dist. Atty., of New York City (Stanley H. Fuld, of New York City, of counsel), for respondent.

FINCH, Judge.

Defendant was convicted in the Court of General Sessions of the County of New York of the crimes of grand larceny in the first degree and of grand larceny in the second degree, after a trial before the court and jury. The Appellate Division unanimously affirmed the judgment.

The case is one of a series brought against a number of employees of the Independent Subway System who have been engaged for years in stealing nickel fares deposited by subway passengers in the station turnstiles. The taking generally was of 500 or 600 fares, amounting to $25 or $30. To accomplish the theft joint action was required of the station agent and the maintainer. Both would decide first upon the number of fares to be taken on the respective occasion. The maintainer would then turn back the turnstile register which automatically recorded the nickels deposited, so as to have it appear that fewer passengers had gone through the turnstile. The station agent would then make his report agree with the amount that the register had been set back by the maintainer, and the difference would be divided between them.

Defendant Cox, a turnstile maintainer, was conviction of two crimes of grand larceny, each involving action in concert with a particular station agent. The first larceny involved approximately $1,500 over a period of eleven months committed in concert with station agent Harry Grower, and the second larceny, the theft of more than $370 in ten months in co-operation with station agent Isidore Kodisow. Defendant cannot dispute with any hope of success the fact that the record establishes his guilt of theft.

By way of defense defendant urges that, since the takings occurred over a period of time and at no one time exceeded the sum of $100 he was guilty only of a number of petty larcenies rather than of grand larceny. Petty larceny is defined in brief as the theft of less than $100, while grand larceny consists of the theft of more than $100.

Upon this record there is more than ample proof to show that defendant, over a period of years, stole thousands of dollars in nickels from the Independent Subway System of the City of New York. Direct and unequivocal evidence of the misappropriations was furnished by those who acted in concert with defendant in stealing the nickels. Thus six witnesses testified to the ‘belting’ of the turnstile registers and the forging of the daily official reports, together with the execution in detail of the scheme, the frequency of the thefts and the amount of the various takings. Ample corroborative evidence was furnished by the police officers of the Subway System. Officer Callahan testified that he had observed defendant on May 1, 1937, at the Fourteenth Street subway station, while Kodisow was on duty, tampering with the turnstile register, removing the register's cover and placing his hands in the register. In addition, defendant not only specifically admitted that he had been working with Kodisow at the Fourteenth Street station, but also made numerous admissions to both Officers Callahan and Cody concerning his complicity generally in the stealing scheme. Also the police officers testified that the defendant had paid gratuities to them and had attempted to bribe them. There was evidence too that defendant maintained a safe deposit box under a fictitious name; that he had several bank accounts under other names than his own; that in one of them he had deposited $7,000 over the course of two years; that he made large bets frequently at horse races, and that generally he had been living far beyond his salary of $31 a week. Although the second count charged a theft occurring over a two and one-half year period, the judge limited the issues by instructing the jury to consider only the money stolen between July, 1936, and June, 1937, amounting to approximately $1,300 in concert with Grower at the Chambers Street station in Manhattan. Also, under the fourth count, charging a larceny over a three-year period, the judge confined the jury to consideration of the money stolen, amounting to approximately $370, from November, 1936, to September, 1937, in concert with Kodisow at the Fourteenth Street station in Manhattan. The total in each instance was made up by aggregating the takings at different times, each taking consisting of approximately 500 to 600 nickels.

The question raised has apparently never been squarely presented in this State, although it has been passed upon in at least twenty-five of the other States and in England. In the great majority of those jurisdictions the law is settled that where property is stolen from the same owner and from the same place in a series of acts, those acts constitute a single larceny regardless of the time elapsing between them, if the successive takings be pursuant to a single intent and design and in execution of a common fraudulent scheme. In accordance with the law as so far settled, the trial court instructed the jury that defendant could be convicted of grand larceny only if his takings were motivated by ‘a single and sustained criminal impulse and in execution of a general fraudulent scheme.’ Accordingly this finding of fact by the jury is conclusive in this court.

The case at bar would not seem to differ from that where a...