People v. Noblett

• Decision Date: 23 February 1927
• Citation: 244 N.Y. 355,155 N.E. 670
• Parties: PEOPLE v. NOBLETT.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 355

155 N.E. 670

PEOPLE

v.NOBLETT.

Court of Appeals of New York.

Feb. 23, 1927.

Edward A. Noblett was convicted of grand larceny in the first degree and judgment affirmed by the Appellate Division (218 App. Div. 763, 218 N. Y. S. 855), and he appeals.

Judgments of Appellate Division and Trial Court reversed, and indictment dismissed.

Crane and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Oswald N. Jacoby, of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga and Archibald Firestone, both of New York City, of counsel), for respondent.

LEHMAN, J.

In March, 1926, the defendant was the tenant of an apartment on Riverside drive in the city of New York. The term of his lease had expired, but right of occupation and possession continued under the statutes known as the Rent Laws. He inserted an advertisement in the New York Times offering to ‘subrent by month or year’ his furnished apartment. The complaining witness read the advertisement on March 12th. He communicatedwith the defendant, and, pursuant to appointment, he met the defendant on the same day at his apartment. The complaining witness agreed to lease the apartment till June 1st. Possession was to be given on March 20th. The rent of $550 was to be paid in advance. The complaining witness paid $40 on account, and agreed to pay the balance of the rental in advance the following morning, March 13th. He received from the defendant a written receipt, signed by the defendant, for the $40 he paid on account. The terms of the agreement were embodied in it. On the following morning the complaining witness paid the defendant the sum of $510, the balance of the agreed rental, but he has not received possession, either on March 20th, or at any other time, of the apartment which the defendant agreed to rent to him.

The indictment against the defendant contains two counts. The first count charges in effect that the defendant obtained the sum of $510 from the possession of the complaining witness ‘by false and fraudulent pretense and representation.’ The only false representation which is alleged is that the defendant ‘then and there owned a lease of apartment 12C at premises 131 Riverside Drive, New York county, covering a period of eight years, which said lease then had still two years to run.’ The second count charges in common-law form the larceny of the same moneys. At the close of the people's case the trial justice dismissed the first count of the indictment. His ruling was not based upon any technical distinction between common-law larceny by trick and device and obtaining money or property by false pretense. It was based upon a holding that the evidence showed beyond possibility of dispute that, while the defendant did not have a lease of the apartment with two years to run, yet, if he continued to pay rent, he did have right to possession under the Rent Laws (Consol. Laws, c. 50, §§ 220-232), extending beyond the term for which he agreed to give a sublease, and that therefore the alleged false representation, even if made, was not material. At the time the motion was made the evidence was clearly insufficient to show that the complaining witness had parted only with possession of the moneys, reserving title thereto, and the trial judge was apparently not under any misapprehension that in such circumstance a conviction for common-law larceny could be sustained. He did, however, permit the complaining witness to be recalled in an attempt to show that he gave the defendant the money only upon condition. After additional testimony was given, the trial judge denied the motion to dismiss the second count of the indictment. The jury convicted the defendant upon the second count, and the only question which requires serious consideration is whether the evidence is sufficient to show common-law larceny by trick and device. If the conviction must be reversed, it is not because of mistaken choice of which crime the evidence shows was committed.

The complaining witness parted with his money under a contract which required payment in advance for rental of an apartment. The receipt given by the defendant so recites. The complaining witness testified that he paid the money on condition that he should receive possession of the apartment. Of course, the complaining witness paid the money with the expectation that he would in return receive the agreed consideration, but the evidence seems to show clearly that the complaining witness parted, not only with temporary possession of the money but with his general property in it. The purpose of payment of the rent in advance was that the defendant might have the right to use the money immediately for his own purpose. He told the complaining witness in effect that he would use it to pay his rent to the landlord of the apartment which he was agreeing to sublease to the complaining witness. He did use it for the purpose of paying rent which was in arrears. Perhaps the defendant did not intend to give to the complaining witness possession of the apartment for which rent was payable in advance. He may have been guilty of conduct which was morally reprehensible, but he is not guilty of larceny by trick and deivce if the complaining witness transferred to the defendant not merely possession, but ownership, of the money. We may not pass upon the defendant's moral conduct, or even upon the question of whether he may have been guilty of some crime other than common-law larceny. The sole question before us is whether he has been properly convicted of that crime.

Narrow technical distinctions by which a wrongdoer may escape the consequences of a crime hinder the administration of justice. The courts which administer the law fail to function properly when the penalty which the law has placed upon the commission of a crime may be evaded by the proven criminal through subtle reasoning based on obsolete theory. These are truisms which should require no repetition, but they may not lead the court to create a new definition of a particular crime because judges may believe that the limits previously fixed are too narrow. It is the function of the Legislature to determine whether modern conditions dictate a wider definition of acts which should subject the wrongdoer to criminal responsibility. We may not assume that function even where the established definition of a crime may be based upon distinctions which seem to us at the present time inconsequential. We may not hold that acts come within such definition which under recognized authority have been hitherto excluded.

A long line of authorities in this and other jurisdictions have in the past laid down the limits which define the crime of larceny when possession of property is obtained by a trick or device. On the one hand, we have the cases where ‘the possession of the money or goods said to have been stolen has been parted with, but the owner did not intend to part with the property in them, so that part of the transaction is incomplete, and the parting with the possession has been obtained by fraud-that is larceny.’ Per Lord Coleridge in the case of Queen v. Russett, [1892] 2 Q. B. Div. 312. On the other hand, we have the cases where the owner has parted, not only with possession but with title to property or money-in such cases there can be no common-law larceny.

In some jurisdictions such distinctions have been obliterated by statute. See 24 and 25 Victoria, c. 96, §§ 72 and 88; Stephen's Digest of Criminal Law (7th Ed.) p. 483; Massachusetts Revised Laws, 1902, c. 208, §§ 26, 39, 40, and 67; Commonwealth v. McDonald, 187 Mass. 581, 73 N. E. 852; ‘Larceny, Embezzlement, and Obtaining Property by False Pretenses,’ 20 Columbia Law Review, 318. In this state the distinction has been maintained, at least for some purposes, in the statute. True, the statute provides that, not only a person who ‘takes' property ‘from the possession of the true owner, or of any other person,’ but also a person who ‘obtains' property ‘from such possession by color or aid of fraudulent or false representation or pretense,’ is guilty of larceny (Penal Law [Consol. Laws, c. 40], § 1290), but a defendant may not be convicted upon the charge of ‘taking’ the property of another from the possession of the true owner where the owner parted not only with the possession but with the title. The section includes in the definition of larceny ‘every act which was larceny at common law besides other offenses which were formerly indictable as false pretenses or embezzlement’ (People v. Miller, 169 N. Y. 339, 62 N. E. 418,88 Am. St. Rep. 546), but a defendant must be charged with the particular offense the people claim he has committed (People v. Dumar, 106 N. Y. 502, 13 N. E. 325). In this case the dismissal upon failure of proof of the count of the indictment which charges the defendant with obtaining money by false pretenses leaves open only the question of whether the evidence sustains the charge contained in the indictment of common-law larceny by trick and device.

The cases where the courts have been called upon to determine whether the evidence shows common-law larceny are so numerous that extended analysis, or even reference, must be limited to a few cases selected largely because the people maintain that they constitute authority to sustain the conviction. The fundamental distinction already pointed out between larceny and obtaining property by false pretenses has hardly been questioned. Where the owner has voluntarily and completely passed title, there can be no common-law larceny by trick and device, though the owner was induced to part with title by fraud. Difficulty arises only in the determination of whether the title has passed completely. Here the money was delivered in return for the promise to deliver possession of the premises one week later under a lease to continue to June 1st. Nothing was said that...