People v. Werblow

• Decision Date: 15 July 1925
• Citation: 148 N.E. 786,241 N.Y. 55
• Parties: PEOPLE v. WERBLOW.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 55

148 N.E. 786

PEOPLE

v.WERBLOW.

Court of Appeals of New York.

July 15, 1925.

Henry H. Werblow was convicted of grand larceny in the first degree, and he appeals.

Reversed, and new trial ordered.

For opinion below, see 212 App. Div. 445, 209 N. Y. S. 88.

Crane, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Geo. Gordon Battle and Isaac H. Levy, both of New York City, for appellant.

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

CARDOZO, J.

The defendant, Henry H. Werblow, and his brothers Isaac and Robert, are charged with the crime of grand larceny in obtaining money by false pretenses. The false pretenses were made and the money was paid in London, England. At that time Henry was in China, and Robert in New York. Of the parties to the combination, Isaac only was in London. The plan was laid here. The execution was in other lands. The question is whether our courts have jurisdiction of the crime.

[1] At the outset, we do not go beyond the indictment, for, if this be sufficient, the unanimous affirmance that the Appellate Division enforces upon us the presumption that supporting evidence exists. Const. art. 6, § 9. The fullest statement of the facts is found in the fourth count. That being so, we put aside the others for the moment, and address ourselves to this one. A summary of its allegations will suffice without literal reproduction.

On June 14, 1922, in the county of New York, the brothers Werblow conspired to cheat and defraud the Guaranty Trust Company of New York, a domestic corporation, with its principal office in this state and a branch at London, England. In furtherance of that conspiracy, Robert, in New York, transmitted cablegrams and messages to Henry in China, and received others in return. In furtherance of the same project, Isaac sailed from New York for England, and upon his arrival at London received cablegrams and messages which were transmitted to him in continued furtherance of the project from Robert in New York. Still later, and again in execution of the conspiracy, Henry, still in China, transmitted to the Guaranty Trust Company in London forged cablegrams in the form of orders drawn by the Asia Banking Corporation of Hankow, China, and directing the payment to one Max Elliott of 31,630 pounds sterling. Thereupon at the city of London, Isaac Werblow, assuming the fictitious name of Max Elliott, falsely and fraudulently represented to the said Guaranty Trust Company of New York that there was a person named Max Elliott interested in the building of a certain bridge in China, and that he, the said Isaac Werblow, was such person and so interested; that large sums of money were due and about to become due to him from the Wuchang Provincial Government in China; that the two cablegrams signed in the name of the Asia Banking Corporation were genuine and authentic; and that he, the said Isaac Werblow, posing as Max Elliott, was entitled to payment under them; by virtue of which false pretenses the Guaranty Trust Company at its London branch paid to him the sum of 23,350 pounds sterling, which he appropriated to his own use and to the use of those conspiring with him. There are general allegations at the end of the count that some of the acts constituting the crime were committed in New York and some in England and China, but these by fair construction characterize the acts already set forth in the same count with description of time and place, and are controlled and limited thereby.

[2] Penal Law (Consol. Laws, c. 40), § 1930, subd. 1, subjects to punishment within this state ‘a person who commits within the state any crime, in whole or in part.’ Cf. U. S. Rev. St. § 731,¹ and Davis v. U. S., 104 F. 136, 138, 43 C. C. A. 448. The statute announces a departure from the rule at common law. At common law, jurisdiction in respect of felonies belonged to the courts of the state where the felony was completed (1 Russell on Crimes, p. 19; 2 Stephen, History Crim. Law, p. 11; The Queen v. Keyn, L. R. 2 Exch. Div. 63, 103). There was no jurisdiction elsewhere, no matter how material or flagitious the earlier acts might be. In larceny by false pretenses, the place where the crime is completed is the place where the money or other property was obtained by the offender. People v. Adams, 3 Denio, 190, 45 Am. Dec. 468; affd. 1 N. Y. 173; Queen v. Ellis, 1899, 1 Q. B. 2330. There, under the rule at common law, and not at the place where the pretenses were made, was the seat of jurisdiction.

[3] We have held that where the constituent acts, which in their union are the crime, have been committed, some of them in New York and some in another state, the courts of New York, if they can catch the offender, may punish for the offense. More specifically, we have held this in a case where false pretenses were made in New York, and the fruits obtained in Pennsylvania. People v. Zayas, 217 N. Y. 78, 111 N. E. 465, Ann. Cas. 1917E, 309. We are now asked to go farther and to hold that a conspiracy formed in New York gives jurisdiction under the statute to punish for a larceny abroad, if only some overt act can be found to have been here committed in furtherance of the conspiracy, even though the act is not a constituent of the executed larceny.

[4][5][6] Such a reading of the statute strains it to the breaking point. We think a crime is not committed either wholly or partly in this state, unless the act within this state is so related to the crime that if nothing more had followed, it would amount to an attempt. We do not mean that this construction of the statute is the consequence of some inherent limitation upon the power of the Legislature. We assume that the Legislature may fix the beginning of the crime at a point earlier than attempt, and identify it with the initial stages of combination or incitement or preparation. The question is whether by this statute it had any thought of effecting a change so revolutionary.

‘An act done with intent to commit a crime, and tending but failing to effect its commission, is ‘an attempt to commit that crime.’' Penal Law, § 2.

Neither combination nor incitement nor preparation is enough. People v. Mills, 178 N. Y. 274, 284,70 N. E. 786,67 L. R. A. 131;People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; People v. Collins, 234 N. Y. 355, 350, 360,137 N. E. 753; Reg. v. Taylor, 1 Fost. & F. 511, 512; 1 Bishop Crim. Law (9th Ed.) § 729, subd. 2.

[7] Acts in furtherance of a criminal project do not reach the stage of an attempt, unless they carry the project forward within dangerous proximity to the criminal end to be attained. Holmes, J., in Hyde v. United States, 225 U. S. 347, 387, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. Where the line is to be drawn will differ with different crimes. People v. Collins, 234 N. Y. 355, 359, 137 N. E. 753;People v. Sobieskoda, 235 N. Y. 411, 419, 139 N. E. 558; cf. cases collated in 9 Halsbury Laws of England, § 539. Wherever it is drawn, it marks the division between promise and partial or complete fulfillment. People v. Collins, supra. We may not say that any part of a crime has been committed in New York, unless by something here done the stage of fulfillment has been reached, and that of promise left behind.

The argument for the people can be tested by its consequences. If combination and incitement and preparation are sufficient, though not amounting to an attempt, there will ensue an extension of jurisdiction until now unknown to our law. In that view, two or more criminals confederating in New York to commit a murder in California or in China, and arming themselves in New York with weapons for that purpose, may be prosecuted here for the killing of their victim. They may even be put to death under our law, though the state of the homicide punishes by imprisonment, and nothing more, or classes the guilt of the offenders as homicide of a lower grade. A fortiori, of course, there may be prosecution in one county of a state for a murder in another county, if confederation and preparation can be traced to the county of the trial. Cf. People v. Hudson Valley Construction Co., 217 N. Y. 172, 176,111 N. E. 472. What is true of murder will be true in like measure of rape or robbery or burglary. Such changes may come to pass hereafter. When they come, they will establish new landmarks of criminal jurisdiction. Cf. Bishop, supra, citing People v. Youngs, 122 Mich. 292, 81 N. W. 114,47 L. R. A. 108. There was indeed an attempt in England to punish an alien, one Bernard, under the rules of the common law as an accessory before the fact for the murder in Paris of several persons killed by a shell thrown by one Orsini at the carriage of Louis Napoleon. Reg. v. Bernard, 1 Fost. & F. 240; 1 Russell on Crimes, 30. The prisoner was acquitted, and the point of jurisdiction which had been reserved was not decided. See the comments of Stephen, History of Criminal Law, vol. 2, p. 13. As regards the particular crime of homicide and incitement to homicide, the question has been set at rest in England by a statute too plain for misconstruction. 24 & 25 Vict. c. 100, §§ 4 and 9, revising 9 Geo. IV, c. 31, § 7, which had been limited to the King's subjects. We are asked to declare that changes like to those of the statute of Victoria have been effected in our state, not merely in respect of homicide, but in respect of crimes of every kind. The declaration should be withheld until our Legislature has spoken with like clearness and directness. Penal Law, § 1930, subd. 3, expressly covers the case of one who, while remaining in another state, incites the commission of a crime in this state. There is no equivalent provision for the converse case of one who, remaining in this state, incites the commission of a crime in another. Nothing within which such a situation can be...