People v. Scharf

• Decision Date: 04 February 1916
• Citation: 217 N.Y. 204,111 N.E. 758
• Parties: PEOPLE v. SCHARF.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 204

111 N.E. 758

PEOPLE

v.SCHARF.

Court of Appeals of New York.

Feb. 4, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

William Scharf was convicted of grand larceny in the first degree. There was judgment of conviction, and from a judgment of the Appellate Division (168 App. Div. 494, 153 N.Y. Supp. 1045), reversing, the people appeal. Judgment of the Appellate Division reversed, and conviction affirmed.

See, also, 154 N.Y. Supp. 1138.

James C. Cropsey, Dist. Atty., of Brooklyn (Harry G. Anderson, of Brooklyn, of counsel), for the People.

Samuel Widder, of Brooklyn, for respondent.

COLLIN, J.

The Appellate Division reversed the judgment upon two exceptions of the defendant to refusals of the trial judge to charge as defendant requested.

The cardinal facts are: The defendant, on April 2, 1914, went to the place of business of one Spievack, a dealer in jewelry, and told him that he wished to buy a pair of diamond earrings. He asked Spievack to deliver the earrings to him for the purpose of appraisal or testing. Spievack declined. The defendant thereupon did acts and made statements intended and adapted to demonstrate that he was worthy of credit, and then asked Spievack to show him the pair of earrings. Spievack complied. The defendant then asked Spievack, who complied, to show him a second pair of diamond earrings. The defendant and his wife examined the two pairs, and the defendant then requested Spievack to leave both pairs of earrings with him so that he might have them appraised or tested, and said: “Whichever one will be proven to be better we will take them.” Spievack assented upon the condition, and it was agreed between them that the defendant should return the two pairs of earrings to Spievack on the next day. The two pairs were worth $1,218. The defendant, instead of returning the earrings, pawned them-one pair on April 6, 1914, and the other on April 30, 1914-and sold the pawn tickets. The wife of Spievack went to the house of the defendant on April 3d to secure the return of the earrings, saw the defendant and his wife, and on April 6th the defendant stated to Spievack that he had not as yet had them appraised, and when he had he would return them to Spievack. During the days immediately following, Spievack and his wife sought unsuccessfully to have interviews with the defendant in order to obtain the earrings. On April 19, 1914, the defendant sent to Spievack by a Mrs. Alperin certain promissory notes made by defendant and indorsed by his wife, payable to the order of Spievack. The aggregate face amount of those notes does not appear. Spievack gave six or seven of the notes, indorsed by him, each for the amount of $76.50, to the firm from which he obtained the earrings and with which he dealt, and retained the others. He caused one for $300, due May 1, 1914, to be protested for nonpayment. No part of any of the notes was paid. Those transferred by Spievack were returned to him, and he produced all of them at the trial. Spievack and the defendant had no other business transactions. Spievack testified that the notes were given to him as security. There is no other evidence relating to the purpose for which the notes were sent to or received by Spievack. The defendant rested at the close of the people's case.

The Penal Code provides:

“A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person: 1. * * * 2. Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation or as a public officer or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof steals such property, and is guilty of larceny.” Section 1290.

The trial judge, as a part of his charge, read this section to and instructed the jury to determine whether or not the defendant intended to deprive or defraud Spievack of the earrings, and whether or not he was the bailee or vendee of them and, inter alia, stated to the jury:

“Now the defendant contends, by the cross-examination of the witnesses and through certain notes and through argument of counsel, asking your deductions from that data, that certain notes were received, that there was a sale, that the defendant bought from this complaining witness this property. * * * If you find as a matter of fact that there was a sale of those diamonds, and that it was the intention of the complaining witness to sell the diamond earrings to the defendant, and that it was the intention of the defendant to purchase those diamonds, * * * then I charge you that both title and possession of the diamonds passed to the defendant, and the defendant cannot be convicted of the crime charged, and it will be your duty to render a verdict of acquittal. On the other hand, if you find as a fact that it was not a sale, but that the earrings were delivered by the complaining witness for some specific purpose such as I have already expressed, and that on failure of that they were to be returned, or that the money was to be returned, then I say that this defendant had no right or authority to dispose of the diamonds in any other way than for the express purpose for which they were originally delivered to him. And if he did dispose of them in any other way or appropriated them to his own use, then he converted the diamond earrings to his own use, and if he did so with the felonious intent to deprive and defraud the owner of the diamond earrings of his property and to appropriate the same to his own use, then he is guilty of grand larceny of the first degree, as charged in this indictment. Now I charge you further, as to these notes, that it makes no difference at all whether these notes were given or not at that subsequent date. If you believe...