People v. Formosa

• Decision Date: 15 March 1892
• Citation: 30 N.E. 492,131 N.Y. 478
• Parties: PEOPLE v. FORMOSA.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 478

30 N.E. 492

PEOPLE

v.FORMOSA.

Court of Appeals of New York.

March 15, 1892.

Appeal from supreme court, general term, fifth department.

William H. Formosa, agent of the National Life Insurance Company of Vermont, was indicted for violating chapter 282, Laws 1889, as amended by chapter 401, Laws 1890, for allowing a rebate as an inducement for one Graves to insure his life in that company. From a judgment of the general term affirming a judgment of the court of sessions defendant appeals. Affirmed.

W. Henry Davis, for appellant.

George A. Benton, Dist. Atty., and Howard H. Widener, Asst. Dist. Atty., for the People.

EARL, C. J.

In 1889 the defendant was the agent at Rochester of the National Life Insurance Company of Montpelier, Vt., a corporation organized under the laws of that state, and doing business in this state. He was indicted, tried, and convicted under the act chapter 282, Laws 1889, for paying and allowing to one Graves, as an inducement to him to insure his life in that company for $3,000, a rebate of 15 per cent. on the first year's premium. The defendant assails the judgment of conviction upon various grounds.

He was indicted on the 30th day of October, 1890, and the indictment alleges the commission of the offense on the 26th day of October, 1890. The proof showed the commission of the offense to have been about one year carlier, and his counsel now claims that there was a fatal variance between the time alleged in the indictment and that shown by the proof. It does not appear by the record that this variance was in any way called to the attention of the court upon the trial, and the record contains no exception presenting the point for our consideration. If objection on this ground had been made at the trial, the court could have allowed an amendment of the indictment under section 293 of the Code of Criminal Procedure. People v. Johnson, 104 N. Y. 213, 10 N. E. Rep. 690; People v. Jackson, 111 N. Y. 362, 19 N. E. Rep. 54.

The indictment alleges that the Vermont company was a corporation organized under the laws of that state, and it is claimed that no proof was given upon the trial showing its corporate existence. No such objection was made at the trial, and there is no exception presenting that point for our consideration. If objection had been made, the district attorney might have furnished the technical proof required to establish the incorporation of the company. But we agree with the court below that there was sufficient evidence that the Vermont insurance company was a corporation authorized to carry on the business of insurance. If it was not, it could not, under the laws of this state, have transacted business here. It appeared in the evidence that it was transacting business here; that the defendant represented it, and held it out as a corporation. It was spoken of by the witnesses as such, and the policy which was issued to Graves was indorsed by the defendant as ‘General Agent of the National Life Insurance Company of Vermont.’ In the absence of objection, such evidence was sufficient, and so we think the objection was not well taken.

The main point, however, upon which the learned counsel for the defendant relies here, is that the act making it a criminal offense for him to pay a rebate to induce any person to effect insurance in the company was unconstitutional, on the ground that it arbitrarily and unjustly abridged his natural rights and personal liberty in the conduct of his business. He claims that the act has no relation to the public safety or welfare, and hence that it could not be enacted under the police power which the state, through its legislature, can exercise. Life insurance companies perform very important functions in modern society. They operate in all parts of the state, and a very large number of people are interested in them. They are resorted to...