Larkin v. People
61 Barb. 226
N.Y. Sup. Ct.
1871
Check Treatment
By the Court, Johnson, J.

The plaintiff in error was indicted, tried and convicted in the court of sessions of Erie county, for a crime charged in the indictment to have been committed at the village of Little Falls, in the county of Herkimer. It was charged in the indictment that the crime was committed at the aforesaid place, on board a “ canal boat, which was a vessel called R. C. Palmer, navigating the Erie canal as aforesaid,, which said boat, being a vessel, in the course óf this same voyage and trip, had been navigated through a part of the county of Erie aforesaid, and also through the said county of Herkimer.”

It was necessary, in order to give the court jurisdiction to try the offense, that it should be alleged in the indictment, that the crime was committed “on board the boat or vessel,” and that the boat or vessel, on that trip or voyage, had passed through some part of Erie county; and also to prove both facts upon the trial. (2 R. S. 727, § 44, as amended by eh. 431 of the Laws of 1860.)

It was proved, upon the trial, that the boat in question was navigating the Erie canal, and in the course of .that trip or voyage had passed from Buffalo, on the canal, through a part of Erie county; .but'there was'not a particle of shadow of evidence to prove that the crime charged, if any such had been committed at the place" named in the *236county of Herkimer, had been committed on board the canal boat, as charged. The question of the jurisdiction - of the court to entertain and try the offense, ivas raised in various forms during the trial, and decided against the plaintiff in error. The only testimony in the whole caso on which to base the slightest pretense that the checks had been converted by the plaintiff in error to his own use, at Little Falls, in the county of Herkimer, shows expressly that it was not on board the boat; and the whole case shows that if the checks, or either of them, had been unlawfully applied or converted by the plaintiff' in error, it was not on board the boat, or-elsewhere in the county of Herkimer.

This is-sufficient to reverse the judgment, upon the ground of an entire want of jurisdiction in the court, upon the facts proved, to render it, or to entertain the case after the people had gone thróugh with their evidence.

But it would not be difficult, I think, to show conclusively, were it necessary, that upon the undisputed facts appearing upon all the evidence, no offense whatever had been, anywhere, committed by the plaintiff' in error, even under that most remarkable and extraordinary amendment to that section of the Revised Statutes relating to embezzlement by carriers and other persons entrusted with the goods and property of others to be transported or carried for hire, (2 R. S. 679, § 62,) by chapter- 729 of the session laws of 1865. By this amendment, a carrier of goods who has received the whole or ariy part of the price for the carriage or transportation of the same, in advance, and shall apply the same to his own use, or to any other purpose than that for which the advance was made, Avithout the consent of the person making the advance, “ or shall refuse to apply the same to the purpose for which he received the same,” is to be deemed guilty of embezzlement, and, on conviction, punished in the manner prescribed by law for feloniously stealing the property of another, to the *237same amount and value. The money which a carrier receives as the price for the carriage or transportation of the goods, upon his contract, is undeniably his own money, and yet here is a statute which makes the use of that money by its owner, in some way other than that contemplated by the parties when the advance was made, a crime equal to a theft of the same amount or value of property, from a third person, or from the person making the advance upon the contract. It is a most anomalous and extraordinary attempt, by statute, to confound and obliterate all the settled and plain distinctions which have existed from time immemorial between a felony and a mere breach of contract, in favor of a particular kind of business. It cannot be looked upon otherwise than as a novel and dangerous innovation upon the fundamental principles of law, and as such, if it shall be allowed to stand, to be regarded bj- all courts with extreme jealousy, and be interpreted with the utmost strictness and rigor.

But in the case before us, the judge, in his charge to the jury, was constrained to advise them that there was no evidence in the ease of the conversion by the plaintiff in error, of any of the funds charged to have been wrongfully applied, or converted, by him, except the check for $200. In this he was clearly right, as the whole case shows. This check for $200, when delivered to the plaintiff in error, by the forwarders, and complainants, on the contract, was not payable to him, or to his order, or to bearer, but was payable “to the order of C. Myers.” Myers, it appears from the evidence, resided in the city of Rochester, in Mohroe county, and the only evidence in the case, in regard to the disposition of that check, was that of the plaintiff in error himself, who testified that he delivered it to Myers, in Rochester, in payment of a debt he owned him on the same boat, R. C. Palmer. He also téstifies that it was made out in that form at his request, for the express purpose of enabling him to pay it to *238Myers. This is not denied by the agent and bookkeeper of the forwarders, who made out and delivered the cheeks, but is rather confirmed by his testimony. But if it had been disputed, the form of the check alone would be conclusive, that Myers was to order how the check, or the avails .thereof, should b.e disposed of. It is perfectly certain, therefore, upon the evidence, that this $200 check was used and disposed of in the precise manner intended, not only by the plaintiff in error, but by the agent making the advance, at the time it was made.

[Fourth Department, General Term, at Syracuse, November 13, 1871.

The persons making the advance did assent, by the very terms of the check, by which it was made, that Myers, and not the plaintiff in error, or any one else, should order as to the disposition of it.

The judgment.must therefore be reversed, and the defendant therein be absolutely discharged.

Mullin, P. J., and Johnson and Talcott, Justices.]