People v. Dumar

• Decision Date: 04 October 1887
• Citation: 106 N.Y. 502,13 N.E. 325
• Parties: PEOPLE v. DUMAR.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 502

13 N.E. 325

PEOPLE

v.DUMAR.¹

Court of Appeals of New York.

October 4, 1887.

Appeal from general term, supreme court, Fifth department.

Mr. Chamberlain, for appellant.

Mr. Benton, Dist. Atty., for respondent.

DANFORTH, J.

The grand jury of Monroe county, by indictment, accused the defendant, Dumar, and one Hensler, of the crime of grand larceny, committed, as therein alleged, as follows: ‘On the third of February, 1885, at Rochester,’ certain carpets and rugs (describing them) of the goods, etc., ‘of Ilus F. Carter, then and there being found, unlawfully and feloniously did steal, take, and carry away, contrary to the form of the statute in such case made and provided.’ Dumar was arraigned, and pleaded not guilty. The record shows that the issue so formed was brought to trial, and the district attorney, in opening the case to the jury, as he was bound to do under section 388 of the Code of Criminal Procedure, said ‘the people would show that the defendant had committed the crime of grand larceny by obtaining from Carter certain personal property by false representations and a false writing;’ whereupon counsel for the defendant asked that he be discharged, on the ground that the case so stated varied from the crime charged. The motion was denied. Evidence then given on the part of the plaintiff showed a sale and delivery of the carpets and other property by Carter to the defendant, at the time stated in the indictment, in consideration of $742.81, in part payment of which the defendant gave $10 in cash, and his two notes, each for $350, payable at two and three months, respectively, leaving a balance due from him, as stated upon the bill then rendered by Carter, of $32.81. But the evidence also tended to show that fraudulent pretenses and representations had been made as to certain securities given by him in order to induce the sale, and no evidence was given of any taking against the will of the owner, nor of the act as charged in the indictment; and, at the close of the plaintiff's evidence, a motion to discharge the defendant was again made upon the grounds, among others, (1) that the testimony on the part of the people fails to show that the crime of larceny has been committed, as set forth in the indictment; and (2) that there is a variance between the proofs offered by the people and the allegations of the indictment.

The motion was denied, and, in submitting the case to the jury, the learned trial judge instructed them that the crime charged in the indictment was made out if the defendant, ‘with intent to defraud and deprive the true owner of his property, and to appropriate the same to his own use, obtained it from his possession by color or aid of fraudulent or false representations,’ saying: ‘If, then, you shall come to the conclusion that the defendant did, on the third day of February last, obtain from Mr. Carter property of the value of over $500, by reason, or through, or by the aid of, fraudulent or false representations or pretenses, then you shall find him guilty of grand larceny in the first degree,’ or of some lower degree, as they should find the value of the property. By proper exceptions to the charge, the point made at the beginning of the trial was again presented. The defendant was convicted of grand larceny in the second degree, and duly sentenced. Upon appeal, the conviction was affirmed by the general term of the supreme court, and the defendant appeals.

Many exceptions were taken upon the trial, not only to the course of procedure, but the sufficiency of the evidence to establish any crime. They are not destitute of merit, but the only question we think it necessary to consider is one of pleading. Our conclusion as to that will dispose of the appeal. The indictment on which conviction was had was, as the learned counsel for the respondent says, good at common law. 2 Pom. Arch. Crim. Pr. & Pl. 1, 141. It was also good under the Revised Statutes of this state defining larceny. 2 Rev. St. p. 679, § 63; Id. p. 690, § 1. But, if the doctrine contended for by him as to the form of the indictment and evidence under it, in cases of larceny committed in the various ways now known to the law, be admitted, it would, in our opinion, not only lead us (1) to encounter known principles of natural justice, which in all criminal prosecutions entitle the accused ‘to be informed of the nature and cause of the accusation,’ (Bill of Rights, § 14;) but (2) to wholly disregard the general current of judicial authority in this state; and (3) to put aside the plain and explicit directions of the statutes by which the matters here involved are now regulated, (Pen. Code, and Code Crim Proc., infra.) Under the former system, a substantial distinction was recognized between the crimes of larceny (2 Rev. St. p. 679, § 63; Id. p. 690, § 1) and false pretenses, (2 Rev. St. p. 677, §§ 53, 54.) In order to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense could not be confounded with it. In either case the property may have been obtained by artifice or fraud; but if in one the owner intended to part with his property absolutely, and to convey it to the defendant, and in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was therefore uniformly held that if a person, through the fraudulent representations of another, delivered to him a chattel, intending to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses.

In Ross v. People, 5 Hill, 294, a conviction for larceny was reversed because the goods were delivered by the owner with the intention to sell them, and so, having obtained them under a purchase, although by fraud and false pretenses, the purchaser could not be convicted of larceny. The distinction was adhered to, although with reluctance, and in deference only to earlier cases. The doctrine then applied was laid down, before the adoption of the Revised Statutes, in Mowrey v. Walsh, 8 Cow. 238, and governed the courts of this state until the adoption of the Penal Code in 1881. Bassett v. Spofford, 45 N. Y. 388;Zink v. People, 77 N. Y. 114;Thorne v. Turck, 94 N. Y. 90;People v. Morse, 99 N. Y. 662, 2 N. E. Rep. 45. And it is obvious that if these decisions apply, neither the opening of the district attorney, nor the evidence put in by him, gave even color of support to the indictment, and it should not have been sustained. The indictment was for larceny as defined at common law, but concerning which, as above interpreted, no evidence was given; that crime, therefore, being left unproven, while the conviction was had upon proof of false representations, the making of which was not disclosed by the indictment. As to the act charged, there was no proof; as to the act proved, no allegations. But the Penal Code recognized that the moral guilt of the two offenses was the same, and swept away the theory by which the courts had felt constrained to distinguish them in principle. By it larceny is so treated (chapter 4) as to include not only that offense as defined at common law, and by the Revised Statutes, (2 Rev. St. pp. 678, 690;) but also embezzlement, obtaining property by false pretenses, and felonious breach of trust. We find, in section 528 of that act, certain acts enumerated, either one of which, performed by any person with intent to defraud the true owner of his property, or of its use or benefit, or to appropriate the same to use of the taker, or of any other person, makes him guilty of larceny, and he, in the language of the Code, ‘steals' such property. The crime is committed when, with that intent, a person either (1) takes such property from the possession of the true owner, or of any other person; or (2) obtains it from such possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or (3) secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or articles of value of any kind. The second or following subdivision takes in a person occupying a place of trust, or holding a fiduciary or semi-fiduciary relation to another person, and who, under other statutes, would have been guilty of embezzlement or...