People v. Gutterson

• Decision Date: 31 December 1926
• Parties: PEOPLE v. GUTTERSON.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 243

155 N.E. 113

PEOPLE

v.GUTTERSON.

Court of Appeals of New York.

Dec. 31, 1926.

Walter Gutterson was convicted of grand larceny in the first degree. Judgment was affirmed by the Appellate Division of the Supreme Court, Second Department (217 App. Div. 778, 216 N. Y. S. 889), and defendant appeals.

Reversed and remitted.

Appeal from Supreme Court, Appellate Division, Second Department.

Robert S. Johnstone, Stanley L. Richter, and John F. Couts, all of New York City, for appellant.

Arthur Rowland, Dist. Atty., of Yonkers (John Caldwell Myers, of New York City, of counsel), for the People.

LEHMAN, J.

The defendant has been found guilty of grand larceny in the first degree and sentenced to imprisonment for ten years. The evidence clearly establishes, beyond reasonable doubt, that the defendant induced to complaining witness, a widow 70 years of age, to deliver to him at various times between December, 1924, and May, 1925, possession of money and sound securities of the value of upwards of $60,000, and in return the defendant delivered to the complaining witness some common stock of the Interstate Mortgage Corporation which she could have bought in the open market in New York City for a small fraction of the value at which the defendant sold it to her. Indeed, the proof shows that while the defendantwas selling to this elderly widow stock at the price of $70 per share, some of the very certificates of stock transferred to her were purchased by him in the open market at less than one-fifteenth of that price.

The indictment contains two counts. The first count charges larceny by false pretenses. The second count charges common-law larceny of the same property. The evidence fails to show guilt under the second count, and the trial judge at the request of defendant's counsel and with the expressed concurrence of the district attorney submitted to the jury only the question of defendant's guilt under the first count. Upon this appeal we need consider only the first count of the indictment and the evidence produced at the trial to prove its allegations.

The defendant demurred to the indictment on the ground:

‘That it appears on the face thereof: (1) That more than one crime is charged in the first count of the said indictment within the meanings of sections 278 and 279 of the Code of Criminal Procedure; (2) that the facts stated in said first count do not constitute a crime.’

The demurrer was disallowed and the case proceeded to trial. The appeal from the judgment brings up for review the order disallowing the demurrer.

[1][2] The evidence produced at the trial shows that defendant started in December, 1924, to defraud the complaining witness of as much property as he could induce her to deliver to him. Representations made in December resulted in delivery of some securities. When these representations no longer had force to induce delivery to the defendant of further securities, the defendant by repetition and renewed solicitation gave to these representations new force, which resulted in the delivery of further securities. The complaining witness made a number of separate deliveries of stock; the defendant received them at different times. Separate deliveries were the result of representations made at different times. The demurrer, however, serves only to raise objections which appear upon the face of the indictment. The court in disallowing it passed only upon the language of the indictment. The first count of the indictment charges that ‘in or about the months of December, 1924, and January, February, March, April and May, 1925,’ the defendant obtained certain securities from the possession of the complaining witness by false and fraudulent representations. Such allegation does not require inference that the securities were delivered at separate times or as the result of separate orders or directions of the complaining witness. It does not require inference that fraudulent representations made at one time did not of themselves and without renewal or addition induce delivery of all the securities. The allegation of the time when the crime was committed is indefinite; yet that allegation might be sustained without variance by evidence which would show only a single crime. The demurrer was therefore properly disallowed. People v. Williams, 243 N. Y. 162, 153 N. E. 35. Different question would arise if proper objection had been made at the trial that the evidence showed that the possession of the securities was obtained by the defendant at different times and could not represent the consummation of a single crime, and if proper exception had been taken to the charge of the trial justice. It may be that the evidence shows guilt of a number of separate but closely related crimes instead of one crime as pleaded; it may even be that the evidence is insufficient to show technical crime when the defendant obtained possession of some of the securities. No exception taken at the trial to ruling in regard to the admission or exclusion of evidence or to the charge raises such question of law. The defendant did not attempt to have the court draw such distinctions at the trial. Perhaps his counsel determined that such distinctions, even if drawn, would not benefit the defendant. The evidence of guilt would hardly be less convincing or conviction by the jury less certain if such distinctions were drawn. Other questions are raised as to the sufficiency of the indictment, and of the correctness of the rulings at the trial. We find no errors of any substance, and we conclude that the defendant is not entitled to a dismissal of the indictment or to a new trial.

[3] The sentence, however, seems to us erroneous. It appears that in January, 1925, the defendant was sentenced in the United States District Court to imprisonment for 30 days upon a charge of using the mails in a scheme to defraud. There can be no question that except for the defendant's conviction upon the charge of using the mails in a scheme to defraud, the defendant must be sentenced to a state prison under an indeterminate sentence. Penal Law (Consol. Laws, c. 40) § 2189. Under the provision of that section the court, however, might impose a sentence for the longest period fixed by law for the crime of grand larceny if the defendant was previously ‘convicted of a crime punishable by imprisonment in a state prison.’ It has been held by the courts below that in this case the defendant has been convicted of such crime. We do not so construe the statute.

[4][5] In the absence of express s...