Winnick v. Reilly

• Citation: 100 Conn. 291,123 A. 440
• Court: Supreme Court of Connecticut
• Decision Date: 29 January 1924
• Parties: WINNICK v. REILLY, SHERIFF.

123 A. 440

100 Conn. 291

WINNICK v. REILLY, SHERIFF.

Supreme Court of Errors of Connecticut.

January 29, 1924

Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.

Application by Samuel Winnick for writ of habeas corpus to be directed to Thomas L. Reilly, sheriff, to determine legality of arrest of Jacob Hershman on extradition warrant issued by the Governor on demand of the Governor of New Jersey. From judgment dismissing writ, and remanding Hershman to custody, and denying Hershman's motion to be admitted to bail petitioner appeals. Error in part.

On January 3, 1924, Jacob Hershman of New Haven was taken into custody by Thomas L. Reilly, sheriff of the county of New Haven, under and pursuant to an executive warrant issued by the Governor of this State upon demand of the Governor of New Jersey. The requisition proceedings by the Governor of the state of New Jersey were unquestioned, except in the particular hereinafter stated. The indictment made a part of the requisition proceedings sets forth the commission by the said Jacob Hershman of an offense in the jurisdiction of the state of New Jersey, viz. that Hershman on January 11 1923, in the city of Newark, being an officer and stockholder of the Connecticut Wrecking Company, a corporation, and interested therein, did then and there knowingly make a certain false statement in writing, with intent that it should be relied upon respecting the financial condition and ability to pay of the corporation, for the purpose of procuring the delivery of personal property, to wit, lumber, the making of credit, and the extension of credit for the benefit of the corporation, and thereafter setting forth the detail of the false statement. Hershman by his counsel claimed: That the indictment failed to set forth the commission of any crime by him under the laws of New Jersey because the indictment did not state that the alleged false statements were in fact relied upon by any one, which resulted in the parting by any person, firm, or corporation with any property, assets, credits, or other property mentioned in this act.

The court reached the following conclusions:

(1) That section 1 of chapter 241 of the Laws of New Jersey, session of 1912, charged a distinct offense, and that the indictment duly charged the said Jacob Hershman with the commission of an offense under this act.

(2) That the writ of habeas corpus should be dismissed, and the prisoner remanded to the custody of the defendant.

Immediately following the court's decision, the prisoner, through his counsel, moved that he be admitted to bail pending the appeal from the court's decision to the Supreme Court of Errors. The court of common pleas, being of opinion that it had no power to admit to bail pending such appeal, denied the motion.

Benjamin Slade and Charles Harrison, both of New Haven, for appellant.

Walter M. Pickett, of New Haven, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and WEBB, JJ.

WHEELER, C.J. (after stating the facts as above).

The first question raised by the appeal is as to whether the indictment substantially charges Hershman with a crime under the laws of New Jersey. Charging such crime substantially in the indictment is sufficient, as the counsel for Hershman concedes. Ross v. Crofutt, 84 Conn. 370, 373, 80 A. 90, Ann.Cas. 1912C, 1295. The attack upon the indictment is based upon its failure to allege that any one, in reliance upon the alleged false statement, parted with any property of the character specified in chapter 241 of the Laws of New Jersey, session of 1912, and its further failure to identify any particular property, the time when it was parted with, or its receipt by any one. The indictment is based upon section 1 of this act, which reads as follows:

" I. (1) Any person who shall knowingly make or cause to be made, either directly or indirectly, or through any agency whatsoever, any false statement in writing, with the intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable, or the making, acceptance, discount, sale or endorsement of a bill of exchange, or promissory note, for the benefit of either himself, or of such person, firm or corporation," shall be guilty of a misdemeanor.

Comparing the indictment which is given in the statement with the terms of section 1 of this act, we find it to follow almost literally the essentials of the section. We also find that section 1 of this act does not require that any one has parted with any property in reliance upon false statements, nor that the property parted with is identified, nor the time parted with, nor the person so receiving, specified. The crime defined by section 1 is the knowingly making or causing to be made by one a false statement in writing respecting the financial condition, or means or ability to pay, of himself or any other person, firm, or corporation in which he is interested, or for whom he is acting, with intent that it be relied upon, and for the purpose of procuring personal property, money, or credit, etc. It does not purport to define the crime of obtaining property by false statement, but the crime of attempting to do this.

The plaintiff relies upon the decisions of State v. Tomlin, 29 N.J.Law, 13, and State v. Appleby, 63 N.J.Law, 526, 42 A. 847, which hold that an indictment for obtaining property by false pretenses must show that the accused by false representations caused the owner to part with his property. In 2 Compiled Statutes of New Jersey, p. 1800, § § 186 and 186a, we find defined the crimes of obtaining property by false pretenses. Section 186, enacted in 1898, defines the crime of " obtaining money by false token." Section 186a, enacted in 1906, defines the crime of " obtaining money by false representations as to solvency." The decisions cited have application to the crime defined in section 186. A later case relating to the same section is State v. Samaha, 92 N.J.Law, 125, 104 A. 305. Sections 186 and 186a define crimes for obtaining personal property by false token or false representation. Chapter 241 of the Laws of 1912 covers an entirely different crime, to wit, the crime of attempting to defraud by means of false representations as to the financial condition, or means or ability to pay, of the representor as to himself, or another, or a firm or corporation in which he is interested, or for which he is acting.

The trial court was obviously correct in holding that the indictment attached to the extradition proceedings did substantially charge a crime under chapter 241, section 1, of the Laws of New Jersey, session of 1912, and in dismissing the writ of habeas corpus.

The second question presented by the appeal is from the action of the trial court in denying Hershman's motion that he be admitted to bail pending the appeal, upon the ground that the trial court had no power to admit to bail pending such appeal. The sustaining of the dismissal of the writ may have made it unnecessary upon this appeal to pass upon this ruling, but the public importance of the question involved makes it desirable that we decide the point. The appeal upon this point is by the plaintiff Winnick in behalf of Hershman who prayed out the writ of habeas corpus under General Statutes, § 6033. The record discloses that the motion was made by the counsel for Hershman after the writ had been dismissed. We shall assume that the motion was also made by the plaintiff who takes this appeal, and that this fact was inadvertently omitted in making up the appeal. Hershman has also brought his application directly to this court, praying that we review the action of the court of common pleas, and...