People v. Pindar

• Decision Date: 03 February 1914
• Citation: 210 N.Y. 191,104 N.E. 133
• Parties: PEOPLE v. PINDAR.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 191

104 N.E. 133

PEOPLE

v.PINDAR.

Court of Appeals of New York.

Feb. 3, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

William D. Pindar was convicted of larceny, and, his conviction having been affirmed by the Appellate Division (159 App. Div. 12,144 N. Y. Supp. 242), he appeals. Affirmed.

Nash Rockwood, of New York City, for appellant.

Orange L. Van Horne, Dist. Atty., of Cooperstown, for the People.

WILLARD BARTLETT, C. J.

The evidence in this case warranted the jury in finding that in the month of February, 1912, the defendant at Schenevus, in Otsego county, obtained $1,200 in money from one George L. Talmadge by means of a check purporting to have been drawn by one William M. Fleitmann on the Mutual Bank in the city of New York when the defendant knew that the check had not been signed by Mr. Fleitmann or with his authority, and that the drawer thereof was not entitled to draw on the Mutual Bank for the payment of the amount called for by the check. For this act the defendant was indicted for the crime of grand larceny in the first degree under section 1293 of the Penal Law (Consol. Laws, c. 40). There were two counts in the indictment. The first count was dismissed upon the motion of the defendant, who was tried upon the second count only.

The principal question litigated upon the trial was whether the defendant was authorized by William M. Fleitmann to sign the check in question in Fleitmann's name. It appeared that the defendant, a married man who had separated from his wife and children, had been living on terms of intimacy with a woman variously known as A. Moreska or Norosa Wayt, who was a professional singer, with an ambition to go upon the stage. Mr. Fleitmann was acquainted with this woman, and, according to the testimony of the defendant, had promised to assist her toward the production of a vaudeville act by advancing to her the sum of $5,000. On several occasions when Mr. Fleitmann called upon Moreska in the rooms occupied by her and the defendant, the defendant hid himself-once in a closet and once under a folding bed-in order to overhear what was said between them. In this way, and presumably by conversations with the woman herself, the defendant claims to have become informed of the alleged promise by Mr. Fleitmann to provide the money desired by Moreska for her vaudeville enterprise. The defendant, however, did not disclose to Mr. Fleitmann his relations with the woman, or even the fact of his existence, until the occasion when he claims to have been authorized to sign the check in question. This was at the time of a visit by Mr. Fleitmann to Moreska in their apartments, when the defendant entered the room and said to Mr. Fleitmann, without the preliminary of any introduction, that he was representing Miss Norosa, and wanted to know why Mr. Fleitmann could not pay the $5,000 he had promised her and let her put on her vaudeville act. According to the defendant, after considerable conversation, in the course of which Mr. Fleitmann said he was a man with a wife and children, and would have to safeguard himself a little, he expressly authorized the defendant to act as his agent and draw in his name four checks for amounts aggregating $5,000, making them payable to the order of Mrs. William M. Fleitmann; and the defendant testified that Mr. Fleitmann also at the same time gave Miss Norosa authority to indorse his wife's name on the check in order to obtain the money. The defendant took one of these checks, for $2,000, to his friend, Mr. Talmadge, to whom he was indebted in an amount somewhat exceeding $700, and obtained from him $1,200 thereon, as has already been stated. Mr. Fleitmann, who was called as a witness for the people, denied that he knew the defendant or any woman by the name of Moreska, or that he ever authorized any one to sign his name to the check in question, or ever had any account with the Mutual Bank upon which the check was drawn. Further on in the case, however, he admitted an acquaintance with the Moreska woman, but only under the name of Norosa.

[1] The draftsman to whom the district attorney of Otsego county intrusted the preparation of the indictment in this case produced an exceedingly slovenly and ungrammatical pleading; but, having regard to the provision in section 684 of the Code of Criminal Procedure to the effect that no error or mistake in any criminal pleading is to be deemed to invalidate it unless the defendant has been thereby prejudiced, we agree with the learned Appellate Division that the indictment may be upheld under section 1293 of the Penal Law and therefore conclude that there was no error in denying the defendant's motion to dismiss the second count.

[2][3] The absence of exceptions to many of the rulings assailed upon this appeal precludes us from considering some of the points presented in behalf of the appellant upon which his learned counsel apparently relies most confidently. For example, he complains, and with good reason, of the questions put to his client upon...