People v. Epstein

• Decision Date: 31 May 1927
• Citation: 245 N.Y. 234,157 N.E. 121
• Parties: PEOPLE v. EPSTEIN.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 234

157 N.E. 121

PEOPLE

v.EPSTEIN.

Court of Appeals of New York.

May 31, 1927.

Hyman M. Epstein was convicted of grand larceny in the first degree, the conviction was unanimously affirmed by the Appellate Division (218 App. Div. 764, 218 N. Y. S. 847), and he appeals.

Reversed, and a new trial ordered.

Appeal from Supreme Court, Appellate Division, First Department.

Robert H. Elder and Otho S. Bowling, both of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (William B. Moore, Dep. Asst. Dist. Atty., of New York City, of counsel), for the People.

KELLOGG, J.

The indictment, in two counts, charged the defendant with the commission of the crime of grand larceny in the first degree. The first count charged that the defendant, on the 4th day of April, 1924, did steal, take, and carry away from one Ray Dona Kuba the sum of $2,731 in lawful money. The second count charged that the defendant, having in his possession the property of Ray Dona Kuba, described in the first count, as agent, bailee and trustee thereof, did feloniously appropriate the same to his own use. On the trial, the judge presiding withdrew from the consideration of the jury the charge contained in the first count. The jury found the degendant guilty of the crime of grand larceny as charged in the second count. The judgment of conviction was affirmed, and, from the judgment of affirmance, the defendant appeals.

Witnesses for the prosecution gave testimony of which the following is a brief summary: The complainant, Ray Dona Kuba, for ten years prior to the year 1918, had been the mistress of one Moses Sahlein. She left him in the year 1918, and Sahlein then promised that he would take care of her for the rest of her life. In August of the year 1923 Ray Kuba met Sahlein and urged him to give her the money he had promised. In pursuance of the request, on August 17, 1923, Sahlein gave Ray Kuba certain securities, among which were 400 shares of the common stock of the Texas & Pacific Railway Company, and a $5,000 bond of the Missouri, Kansas & Texas Railroad. Sahlein died within a few weeks. Ray Kuba consulted with her brother, Dubie Kuba, concerning the disposal of the securities given her. He, in turn consulted with his business associate, the defendant, Hyman M. Epstein. The two visited a broker for the purpose of procuring the securities to be sold. The broker, when told that the securities came from the possession of Sahlein, then deceased, declined to handle the securities, on the ground that he might get into trouble with Sahlein's estate. Early in October, 1923, Ray Kuba, Dubie Kuba, and Epstein met in the Commodore Hotel in New York. Ray Kuba had with her the securities given her. Epstein reported that the securities could not be sold. He suggested interviewing the attorney for the Sahlein estate, and stated that he thought he could get $100,000 for the securities. That sum was about five times their market value. Epstein said that he must have the securities to introduce himself to the attorney. Ray Kuba thereupon turned over to him the securities, and Epstein said that he would place them in a vault for safe-keeping. Epstein saw Mr. Flaherty, the attorney for the Sahlein estate. He tried to get from him an authorization of the estate for the sale of the securities, but was not successful. Epstein reported back to Ray Kuba that Flaherty would write Mrs. Stern, a sister or Moses Sahlein, to whom all his property had been left. He told her that some other woman, who had had relations with Sahlein, had obtained $1,000,000 from the estate. About the time Epstein went to see Flaherty, Ray Kuba gave him a written statement setting forth her history and other interesting items. She stated therein that Moses Sahlein left an estate of about $15,000,000 and specified various parcels of New York real estate which he owned. The statement contained the following:

‘Attorney Flagherty is bluffing as M. S. only lunched with him once or twice a year;’ ‘I think Flagherty cannot be bluffed or made to do as Mrs. Rose Stern (M. S. only sister). If Mrs. Stern is seen and told the story (omitting my name Ross) she will consent, as she would not like to have the N. Y. and Frisco papers get the story of M. S.’ life which involves affairs with among others the following' (naming them). ‘Tell Mrs. Stern you have enough leads for the newspapers to make a big story of it.’ ‘M. S. Cousin Grace Sahlein and her daughter-in-law, Mrs. Grace Steinau, would make a big hit of notoriety and Mrs. Stern knows all about it. Letters from the younger Grace whom M. S. tempted with big money and then threw aside would be made public. The above would involve the Sahlein old maids and the papers can get the entire life, and signed statement of many.’

On October 17, 1923, Epstein procured the 400 shares of Texas & Pacific stock to be transferred to his name on the books of the corporation. The certificates had been originally issued to Shafer Bros., brokers, and were indorsed in blank by them. Before procuring their transfer to himself, Epstein filled in the blank assignments on the back thereof with his name as assignee. On the same day as the transfer, October 17th, Epstein turned in the old certificates and procured new certificates to be issued to himself. On the 14th of January, 1924, Epstein delivered one of the certificates to a broker for sale. It was sold and the proceeds were credited to his account with the broker. On February 4, 1924, he delivered the remaining three certificates to the broker for sale. One was sold on the same day and one on March 7th. The proceeds were placed to his account and checks were drawn by the broker payable to Epstein, which he cashed. On April 4, 1924, the fourth certificate was sold for $2,731. This is the certificate for converting the proceeds of which Epstein was charged with grand larceny. The broker drew a check for $2,800, payable to Epstein, on the same day, and the check was returned subsequently to the broker as paid. It then bore the indorsement of Epstein. Meanwhile, Ray Kuba kept importuning Epstein for a settlement with the Sahlein estate, and Epstein kept putting her off. Finally, in May, 1925, Ray Kuba and her sister met Epstein in his apartment. Ray Kuba told him she could not wait any longer; that she was going to Max Steuer, a well-known lawyer, with her case. She demanded her securities. Epstein asked for another week. He said she could raise money on the Chemical Bank stock, one of the securities given her by Sahlein, and he turned over to her the stock certificate therefor. The blank assignment on the back thereof had been filled in with the name of Epstein as assignee. In October, 1925, Ray Kuba, with her attorney went to Epstein's apartment and demanded her securities. He said: ‘In haven't got them; I have given you the money.’ Ray Kuba never received the proceeds of the 400 shares of Texas & Pacific stock, nor the $5,000 Missouri, Kansas & Texas bond, which Epstein had caused to be sold for him on April 15, 1924.

Ray Kuba testified that she never authorized the defendant, Epstein, to sell her securities. The following is her testimony upon this point:

‘Q. Now, I understand you to say, and did you not say, that you gave no authority whatever at any time to this defendant to sell the certificates? A. Yes. Q. Is that correct? A. Yes. Q. You never told him to do it? A. Never. Q. Never asked him to do it? A. No. Q. He never told you he was going to sell those things ? A. No. Q. You didn't want him to? A. No. Q. And when he did it, he did it contrary to your wishes and orders, is that right? A. Yes.’

The burden of her testimony and of her statement is that she employed Epstein, not to sell her securities to buyers generally, but to extort large sums therefor from the estate of Moses Sahlein, upon threats otherwise to expose his past life through the public prints.

The defendant, Hyman M. Epstein, called as a witness, told a story which partly confirmed the testimony of the prosecution's witnesses, but which in important particulars differed from the testimony of Ray Kuba. He stated that he was employed generally to sell the securities for Ray Kuba. He denied that there was a plan made to extort more money than the securities were worth from the Sahlein estate. He said that Ray Kuba complained often that he had not sold the securities; that she importuned him to get money for them; that he told her the difficulties standing in the way of sales unless the Sahlein estate authorized them; that finally, in the latter part of September, 1923, he offered to buy the 400 shares of Texas & Pacific and the $5,000 bond of Missouri, Kansas & Texas for two-thirds their market value. He said that the market value of these particular securities amounted to $9,800; that he offered to give her $6,500 for them; that she said she would take $6,550; that the bargain for their sale at that price was then made. He said that he gave her a check for $900 at the time; that he gave her a check for $500 within two or three days; that within a week he gave her a check for $1,100; that in November he gave her a check for $2,150; that in the same month he made his final payment by giving her a check for $1,900. The complainant, Ray Kuba, denied that she ever sold the 400 shares of Texas & Pacific stock or the Missouri, Kansas & Texas bond to the defendant Epstein.

[1] The defendant, Epstein, did not offer in evidence the checks, stated to have been given by him to Ray Kuba, which, if given and thereafter cashed, must have been returned to him. He testified that the canceled checks had been...