People v. Mead

• Decision Date: 15 November 1910
• Citation: 200 N.Y. 15
• Court: New York Court of Appeals Court of Appeals
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HERBERT C. MEAD, Appellant.

200 N.Y. 15

92 N.E. 1051

PEOPLE

v.MEAD.

Court of Appeals of New York.

Nov. 15, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Herbert C. Mead, indicted for grand larceny, appeals from a judgment of the Appellate Division (125 App. Div. 7,109 N. Y. Supp. 163), reversing a judgment of the County Court, which sustained a demurrer to the indictment. Affirmed.

E. A. Griffith, for appellant.

Myron D. Short, for respondent.

CULLEN, C. J.

The defendant was indicted for grand larceny, first degree, for having feloniously appropriated to his own use the sum of $738.67, the property of ‘The People's Mutual Life Insurance Association and League.’ The indictment was framed under the second subdivision of section 528 of the Penal Code, which makes embezzlement by the agent, clerk, or officer ‘of any person, association or corporation’ larceny. The only attack made on the indictment is that it fails to charge that the league was an association or corporation. For this alleged defect the demurrer was sustained by the County Court, but has been overruled by the Appellate Division.

Under the old rule, which prevailed long ago in England, which required great particularity in the description of persons, it was necessary to allege the incorporation of a corporation. But that rule has not been generally accepted in this country, though there is much contrariety between the decisions of the various states. In Illinois, Texas, and Alabama it seems the absence of an allegation that the owner mentioned in an indictment for larceny is a corporation (when it is such) is fatal to its validity. On the other hand, in New Jersey and Indiana the exact reverse is held. Fisher v. State, 40 N. J. Law, 169; Johnson v. State, 65 Ind. 204. Such seems to be the law now in California (People v. Henry, 77 Cal. 445, 19 Pac. 830), practically overruling an earlier decision (People v. Schwartz, 32 Cal. 160). If there is no conclusive authority in this state on the question, at least the case of Noakes v. People, 25 N. Y. 380, is very nearly such. That was a prosecution for forging an order for goods with intent to defraud the Meriden Cutlery Company. There was no allegation as to the nature of the company, whether it was a corporation, partnership, or otherwise. Of this the court said: ‘In stating this intent to defraud, it is sufficient to describe the party intended to be defrauded, with reasonable certainty,’ and that the description in the indictment was sufficient. The only ground on which it can be contended that the case is not decisive of the question before us is that the court proceeded to say that, even if there were no such company, the indictment was sufficiently broad to reach the individual members under the description contained in the indictment ‘of divers other persons to the jury unknown.’ I cannot find that the authority of this case has ever been questioned.

In McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456, the indictment charged theft of the property of a corporation, naming it, and alleging that it was incorporated under the laws of the State of New York. In fact, it was a national bank, incorporated under the laws of the United States. It was held that the variance was immaterial as the allegation was unnecessary, for the indictment might have stated the true corporate name of the...