People v. Dimick

• Decision Date: 04 October 1887
• Citation: 107 N.Y. 13,14 N.E. 178
• Parties: PEOPLE v. DIMICK.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 13

14 N.E. 178

PEOPLE

v.DIMICK.¹

Court of Appeals of New York.

October 4, 1887.

Appeal from general term, supreme court, Fifth department.

The defendant was indicted in the superior court of the city of Buffalo, in April, 1884. The indictment contains three counts; and the first count charges, in substance, that on the tenth day of October, 1883, the defendant, with intent to deprive and defraud the true owner of its property, and the use and benefit thereof, and to appropriate the same to the use of the defendant, or of some person or body corporate unknown, did feloniously, falsely, and fraudulently pretend and represent to the Thames & Mersey Marine Insurance Company, a body corporate, that said company had theretofore made and effected through the firm of Crosby & Dimick, composed of Thomas G. Crosby and the defendant, certain insurance upon the cargo of the schooner James Wade, whereby it had insured the cargo of the said schooner for the benefit of some person or body corporate unknown, in the sum of $5,000; and that a loss had theretofore, and after the making of the said insurance, occurred on the cargo of the vessel, whereby the liability of the said company had accrued and become fixed in the sum of $5,000; and that the said company was legally liable to pay said loss to the said Thomas G. Crosby and the defendant, for the benefit of some person or body corporate unknown, entitled to the same; that the company, believing such representations to be true, and relying on the same, were thereby induced to, and did, at the city of Buffalo, on the tenth day of December, 1883, pay over and deliver to the defendant, and the defendant did then and there obtain from the possession of the company by color and aid of such representations, with intent to deprive and defraud the true owner thereof, and appropriate the same to his own use, and to the use of some person or body corporate unknown, the sum of $4,975, of which the company was the true owner, and to the use and benefit of which it was entitled; that the company had not theretofore made and effected any such insurance upon the cargo of said schooner through the firm of Crosby & Dimick, or otherwise; that no such loss had occurred upon the cargo of said vessel for which the company was liable to pay any sum of money whatever; that it had no become liable to pay any sum or moneys whatever, upon any loss whatever, upon the cargo of said schooner, by reason of any insurance made or effected through the defendant or otherwise; that, in fact, each and every of the pretenses and representations were wholly false, fraudulent, and untrue, as the defendant then and there well knew. The second count charged that on December 10, 1883, at the city of Buffalo, the defendant drew upon Angus J. Macdonald, the general agent of the Thames & Mersey Marine Insurance Company, and duly authorized by it to pay the same from its money, in case the drawer thereof was then and there lawfully entitled to draw upon him for payment of the same, a certain draft in the name of Crosby & Dimick for the sum of $4,975, when, in truth and in fact, the defendant and said firm was not lawfully entitled to draw upon the drawee therein named, for that or any other sum, and the defendant knew such to be the case; and the defendant did then and there, with intent to defraud said insurance company by color and aid of such draft, obtain from it the sum of $4,975. In the third count it charges, in substance, the defendant with secreting, withholding, taking, stealing, and carrying away from the possession of the true owner, the Thames & Mersey Insurance Company, the sum of $4,975, and appropriating the same to his own use, or to the use of some person or body corporate unknown.

The defendant demurred to the indictment as follows: ‘(1) That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act constituting the alleged crime, without unnecessary repetition, nor does it set forth the act charged as an offense; (2) that more than one crime is charged in the indictment within the meaning of sections 278 and 279 of said Code; (3) that the facts stated do not constitute a crime.’ The indictment was thereafter moved into the court of oyer and terminer, where the demurrer was overruled, and the defendant pleaded to the indictment. Subsequently, the defendant was brought to trial, convicted, and sentenced to the state prison for a term of five years. A motion for a new trial was made by the defendant, before the judge who presided at the oyer and terminer, and was denied. The defendant then appealed to the general term, and the judgment was reversed, and a new trial ordered, and the people then appealed to this court.

Geo. T. Quinby, Dist. Atty., for appellant.

Spencer Clinton and Daniel L. Lockwood, for respondent.

EARL, J.

The Thames & Mersey Marine Insurance Company, limited, of Liverpool, London, and Manchester, was a foreign corporation authorized to transact business in this state, and it had a general agency for this country in the city of New York, which was in charge of Angus J. Macdonald, its general agent. The Union Insurance Company of Philadelphia, and the Insurance Company of the State of Pennsylvania, were Pennsylvania corporations, authorized to do business in this state, and the Continental Insurance Company was a domestic corporation. During the year 1883, Thomas G. Crosby and the defendant, Lorenzo Dimick, were insurance agents at Buffalo, doing business under the firm name of Crosby & Dimick, and as such they had the agency of all these companies, although in fact the agency of the Continental Insurance Company was in the individual name of Dimick. They were the general agents of all these companies for their inland marine insurance, and as such had very general and extensive powers. They had subagents at various ports upon the lakes, who took risks upon vessels and cargoes, and reported them to Crosby & Dimick at Buffalo, who were authorized to reinsure such risks or a portion of them in their discretion. The particular facts constituting this crime, as the evidence tends to show, are as follows: In the latter part of October, 1883, an insurance was effected in the Union Insurance Company, by the subagent at Detroit, upon a cargo of wheat in the schooner James Wade, for the voyage from Detroit to Buffalo, for $10,500, and Crosby & Dimick were at once notified of such insurance. By the direction of the defendant, $7,000 of that risk was at once reinsured in the Continental Insurance Company, and proper entries to that effect were made on the papers and books of the firm, and the reinsurance became effectual. The schooner never reached her destination, and, after the defendant had heard of her loss, about the middle of November, he gave directions to some of the clerks in his office to cancel the reinsurance in the Continental, and place $5,000 of reinsurance in the Thames & Mersey. By erasures on the books, and papers, and new entries, this was in form done, the purpose being to shield the Continental from loss, and to impose it to the extent of $5,000, wrongfully and fraudulently, upon the Thames & Mersey. Subsequently, the defendant represented to Macdonald that the Thames & Mersey had the insurance of $5,000 upon the cargo of the Wade, made to him proofs of loss, and drew upon him a draft for the amount less a small percentage, to-wit, the sum of $4,975, which he, as agent of the Thames & Mersey, paid, and thus the alleged crime was consummated. The general term, in its order of reversal, certified that it found no reason for granting a new trial in the exercise of its discretion, or upon the facts after a full consideration of the same, and that it reversed the judgment, and granted the new trial for error of law exclusively. We are, therefore, confined in our examination of this case exclusively to the consideration of questions of law raised in the record. As appears by the opinion pronounced at the general term, the reversal was there based upon two errors of law, which we will first consider.

Upon the trial, Macdonald was called and examined as a witness for the people, and then he was cross-examined on behalf of the defendant. During his cross-examination he was questioned as to a certain civil action commenced by the Thames & Mersey Insurance Company against the defendant, in which he had verified the complaint. Without showing or permitting him to read the complaint, defendant's counsel asked him what he swore to as to a particular matter, and he gave answers showing that the complaint contained an allegation somewhat at variance with his evidence upon his direct examination. After his cross-examination was concluded, he was re-examined on behalf of the people, and the district attorney said: ‘I desire to offer this copy of the complaint in evidence,—the whole of it.’ Counsel for the defendant said: ‘I object to it.’ And the court said: ‘I think it may be put in evidence for the purpose of showing what he testified to; it can't be evidence upon any other point.’ The record then shows that the objection was overruled, that an exception was taken, and that the complaint was received and marked as an exhibit. The complaint did contain much matter not relevant to the cross-examination of Macdonald, and not needful or pertinent to explain or qualify such cross-examination. It contained [107 N.Y. 25]13 counts, only one of which related to the matter inquired of upon the cross-examination, and, therefore, the whole complaint was in no sense competent evidence, and if the court ruled that it was all competent, and allowed it to be read to the jury, as now claimed by the defendant, a clear error was committed. The district attorney had the right to read so much of the complaint as related to the cross-examination,...