People v. Markheim

• Decision Date: 12 June 1914
• Citation: People v. Markheim, 162 A. D. 859, 148 N.Y.S. 155 (N.Y. Sup. Ct. 1914)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LOUIS MARKHEIM, Appellant.
• Court: New York Supreme Court

162 A.D. 859

148 N.Y.S. 155

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LOUIS MARKHEIM, Appellant.

Supreme Court of New York, First Department.

June 12, 1914

APPEAL by the defendant, Louis Markheim, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of November, 1913 convicting him of the crime of presenting a false or fraudulent claim to an insurance company, and also from an order denying defendant's motion to set aside the verdict for a new trial, and also from an order denying his motion in arrrest of judgment.

COUNSEL

Henry W. Unger, for the appellant.

Robert S. Johnstone, Assistant District Attorney, of counsel Charles S. Whitman, District Attorney [Royal H. Weller and Stanley L. Richter with him on the brief], for the respondent.

SCOTT J.:

The defendant was indicted, tried and convicted in the Criminal Term of the Supreme Court in the county of New York of having knowingly presented or caused to be presented a false or fraudulent claim for the payment of a loss upon a contract of insurance. (Penal Law, § 1202.) The evidence tended to show that defendant was president of a corporation known as Markheim & Company which carried a considerable stock of goods, insured in forty-three different insurance companies to an aggregate amount of $131,000; that a fire occurred doing considerable damage; that immediately after the fire, indeed on the evening of the same day, defendant as president of the corporation, made a written contract with a firm of public fire adjusters retaining them on a percentage basis to advise and assist in the adjustment of the loss with the insurance companies; that said adjusters immediately notified, in writing, the companies interested of the fact of the fire and the loss; that thereupon a committee of two adjusters was appointed by the president of the Fire Insurance Exchange to represent, as adjusters, the companies affected by the loss; that defendant in order to establish a basis for such adjustment caused to be made up and submitted to the committee of adjusters representing the insurance companies a statement purporting to show in detail the amount and value of the goods on hand at the time of the fire; that such statement was false and known to the defendant to be false and was prepared and presented with the purpose and intent of defrauding the insurance companies into paying a greater sum than the loss actually suffered. It should be said at the outset that the evidence leaves no possible doubt in our minds of the defendant's guilt; that, unless the alleged error hereafter to be considered must be deemed to have been pre-judicial, he had an eminently fair trial, and that upon the vital questions of fact in the case, to wit, the falsity of the statement presented to the adjusters, and defendant's guilty knowledge of that falsity, the case was fairly submitted to the jury with all due regard to the defendant's legal rights. It is also proper to say that, saving the alleged error above referred to, we find no pre-judicial error in the case which would justify a reversal of the judgment.

The sole question which we deem it necessary to consider arises upon an exception to the charge. The trial justice first read to the jury the section of the Penal Law (cited above) under which the defendant had been indicted, and was careful to point out to the jury that upon the evidence the defendant could be convicted only of presenting a false or fraudulent claim, and not of offering proofs in support of such a claim. He then proceeded to analyze the crime as follows: 'Upon reading this section carefully you will observe that there are four elements. We might call them four major questions involved in this case.

' First, as to the existence of a claim;

'Second, as to the presentation by the defendant of a claim;

'Third, as to whether the claim presented by the defendant was a false and fraudulent claim; and

'Fourth, whether the defendant knew it to be a false and fraudulent claim.

'Although you have listened for several days to testimony which, regarded as a mass, might seem most bewildering and confusing and seemed to entail upon you the most difficult task, yet as all this evidence resolves itself in my mind, it becomes extremely simple as compared with the aspect that it might present without analysis.

'Instead of submitting to you all of these major questions contained in the case, I, as the judge of the law, assume the responsibility of determining two of those questions.

'First, as to whether a claim was in existence; and second, as to whether a claim was presented.

'Those questions will be practically taken away from you. And you will be charged on them as questions of law.

'There will remain for you to determine as disputed questions of fact those two other major questions which I conceive are involved in the case--that is,first, was the claim which was presented by the defendant a false and fraudulent claim? Second, did this defendant know it to be such?

'Therefore, in listening to the instructions of the court you may, to a certain extent, relieve your minds from any feeling of responsibility that you may have entertained with regard to those two major questions which I say to you are presented to you as questions of law.

'I charge you that at the time of the fire and just as soon as damage resulted therefrom, there sprang into existence a valid and subsisting claim by reason of a contract of insurance. The defendant sought to enforce this claim by complying with the conditions and terms of the policy. Among other things the defendant served a notice of the fire, the damage, to each of the insurance companies which had policies in full force and effect on the property; caused an inventory of the stock on the grade floor to be made and served on Branson; sent a notice to the committee enumerating each and every policy and the amount claimed thereon; and offered his books of accounts, vouchers and the like to show the amount of stock in the premises on the day of the fire. A computation of and from the books, as appears, discloses stock on hand to the amount of $145,663.85.

'A statement of the books showing the amount of stock at that figure was served on George R. Branson of the Committee on April 17, 1913. It is immaterial whether either member of the Committee requested that statement for, under the terms and conditions of the policy, the defendant was required to produce his books at all reasonable times when requested.

'I therefore charge you as a matter of law that the presenting of this merchandise statement by Lyons, the agent of the defendant Markheim, claiming $145,663.85 worth of goods on hand on the day of the fire, together with the antecedent acts which I have enumerated, was the presentation of a claim for the payment of a loss on a contract of insurance.'

The error insisted upon is that the justice took away from the jury the question of fact as to whether or not the defendant had presented a claim, and undertook to pass upon that question as matter of law.

It is undoubtedly true that if this particular phrase in the charge be read without reference to the context and without reading the charge as a whole, and thus read be considered as presenting an abstract, academic question, it would seem that the court...