99 N.Y.S. 138 | N.Y. App. Div. | 1906
Lead Opinion
An, information was laid before Joseph F. Moss, one of the city - ■‘magistrates, who proceeded to take the depositions of the witnesses - produced, from which the following facts appeared : That the New Y orle Life Insurance Company is a domestic corporation of which John A. McCall was president and the relator, Géórge W. Perkins, vice-president; that in November, 1904, there was an election for President of the United States, and Mr. Cornelius-N. Bliss w.as the treasurer of the Republican national committee; that Mr. Bliss came to the relator and informed him that' Mr, McCall, the president of the .New York Life Insurance Company, had promised him that the corporation would contribute the sum of $50,000 or so much thereof as might be necessary for the purposes-of the national campaign, and had requested Mr. Bliss to see the relator “in reference thereto; that at a . subsequent interview* with "Mr. McCall he informed -the relator that demands were being made upon him for political' contributions by the company which it did not "seem to ■ him it Would be for the interest of the company to make-; that, it Would make it easier for him to refuse such demands if the payment to the Republican national committee was not at -that time . made directly from the funds of the company; that Mr, McCall asked the relator tb see Mr. Bliss and tb make the payments per-' sotially, and said that he Would see that the matter was taken care of later on; that in pursuance of this request the relator advanced to Mr.- Bliss from -his own resources various sums amounting- to $48,500; that during the month of-December, 1904, the Subject
Upon these depositions the magistrate issued a wárrant for the arrest of the relator charging him with the crime of grand larceny in the first degree. Under that warrant the relator was arrested.
Upon this appeal the Only question that, has been argued "is whether oil these facts- the relator was guilty of a crime. In the discussion of this question It must be understood that we are not now concerned with the civil responsibility of the. relator to the company . What -is said relates solely to the question whether or not the relator is guilty of the crime of grand larceny, for which he was in custody when these writs were obtained.
Under sections 148 and 149 of the Code Of Criminal Procedure, when an information is laid before a magistrate, charging -the ■ commission of a crime, he must examine on oath the witnesses produced, whosp depositions- must set forth the facts stated by the prosecutor and his witnesses.tending to establish the commission of the crime and the guilt of the defendant, and section 156 provides that if the magistrate is satisfied therefrom that the crime complained of lias been committed, and that there is reasonable ground to believe that the defendant has committed it, lié must issue a warrant of arrest. If, upon the facts stated in the depositions, no crime has been committed,, or there is.fiot reasonable, ground to believe that the defendant has committed it, the warrant is improperly issued and the defendant cannot be held under it. (Hewiit v. Newburger, 141 N. Y. 538.)
The crime charged is grand larceny in the first degree, under sections' 528 and 536 of the Penal Code. The- former, section provides“ A person who, with the intent- to deprive or defraud the true owner of his pro2ierty, or of the use and benefit thereof, or to. appropriate the same to the use of the taker, or of any other .person, *, * * 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 sucli possession-, custody or. control, -any money, property; evidence ,of debt' or contract, article of
It is evident that there are two essential elements which must appear to justify a conviction for this crime: First, it must appear that the person charged intended 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, and that the property was not appropriated openly and avowedly under a'claim of title, preferred "in good faith, even though such claim is untenable; and, second, it must appear that the person charged with the crime had in his possession, custody or control, as bailee, servant, attorney, agent, clerk, trustee or officer of a person, association or corporation, the money or property appropriated. Bearing in mind these two necessary elements, the question presented is, whether the deposition taken before the magistrate justified him in issuing a warrant against the relator.
The act of the president of this corporation in making a contribution to one of the political parties of the United States to aid in the election of its candidate for President, is the act which it is claimed was the misappropriation of this money of the corporation, which was the foundation of this charge. In considering the nature of this act, it must be borne in mind that such a contribution by a corporation was not prohibited by law. It is claimed, however, that the payment of money was ultra vires of the corporation, and, therefore, beyond its legitimate or authorized power. We may assume the correctness of this claim; but the money that was disposed of being the money of the corporation, if the contribution had been made by an order of the corporation itself, or with the assent of those constituting the corporation, no officer of the corporation would have been liable for making the contribution. That principle is established in this State béyond controversey. (Bissell v.
There was no evidence before the magistrate that this corporation had not authorized -the contribution. The only evidence on the subject was the" deposition of the treasurer of the corporation that “ for many years the president of the company had exercised the power of ordering disbursements out of the-eompany’s funds upon his sole- personal authority,and, as far as lam aware, his right to do this had never been challengedand of one of the vice-presidents, of ' the corporation that “ said McCall, by virtue of his office, had power to make' disbursements known as- disbursements upon executive order.” It cannot, I think, be disputed, but that this act of making such a contribution to one of the political parties, not being prohibited by law, would have been perfectly lawful if made by an individual. Ho law and no declared public policy prohibits' the making of contributions to political parties, except for certain specified purposes stated in section 41 n of the Penal Code. - That being So, it follows that if the corporation had made this contribution, the illustration of Chief Judge Comstock in Bissell v. M. S.
, The relator, however, was not the officer wlio made the contribution. The president of the company having the power, according to the evidence, to order disbursements out of .the company’s funds, his right to do so never having been challenged, informed a subor- ■ díñate officer of the company (the relator) that he had made an arrangement to make this contribution on behalf of the company, and requested the relator to make such a contribution out of his own funds, for which he was to he reimbursed by the company. Acting under this authority the relator paid the money to carry out the .obligation assumed' by the president on behalf of the company. There is no allegation that the relator had any knowledge that the president was not authorized by the corporation to make tins contribution. There is no act proved tv justify the inference that the" relator had any knowledge that the president of the company was acting without lawful authority to make the contributionno allegation that the president of the company had any intent to deprive this corporation of its' money for the use.of the relator, ór for any other purpose; and no. allegation and no fact alleged to justify an inference that in carrying out this transaction at the request of the president of the corporation, the relator had any intent to defraud the company, or to deprive it of its property, or to violate the law.
To one of the depositions upon which this warrant was granted there is a letter of the relator to the district attorney, stating his connection with the transaction, in which he says : “ When I made the advances above mentioned, and when I was reimbursed therefor, it never occurred to me that there could be any question as to the
Upon the argument it was-claimed by the learned district attorney that the crime for which the relator was sought to be held was .committed when he received from the corporation, the money to reimburse him for the claim that he had against the corporation
It is claimed, however, that, as this money was in the possession, custody or control of McCall as president of the-company, and as McCall’s intention was to make this political contribution, which was an appropriation of the property of the company for the use of a person other than the true owner, and as the relator aided and abetted in the appropriation.of the money, he was a principal under section 29 of the Penal Code. That section pro.vides that “ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, * * * is a principal.” But, as before stated, the . evidence before the magistrate was not sufficient to prove that McCall had committed a crime. But assuming that McCall made this arrangement for the contribution without authority from the corporation, the evidence does not establish that the relator- aided and abetted in the commission of the offense, if one was committed. He was not the moving party in making the contribution. It was not done by his command, inducement or procurement. His connection with it was in obeying a request of the president, so far as appears, in entire good faith and with no possibility of any personal advantage or benefit.
In Bouvier’s Law Dictionary (Vol. 1 [Rawle’s Rev.], p. 125), “Aiding and Abetting” is said, to be “ the offence committed by those persons who,, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to
I think, therefore, that it does not appear from these depositions before the magistrate, that a crime had been committed, or that there - , was reasonable. ground to believe that the .defendant 'was. guilty thereof; ,and the order appealed from should be reversed and the relator discharged, ■ ■ .. " , t
Larceny, as defined in section 528 of the Penal Code, includes, every act which was larceny at common law and' in addition such
Do the acts set out in the depositions — including the letter of the defendant upon which the warrant was issued — establish prima facie that the crime of larceny as now defined by the section of the Penal Code referred to, has been committed, and was there reasonable ground to ■ believe that the defendant committed it? This is the real and substantial question presented by the appeal. Unless it can be answered in the affirmative, then the order appealed from should be reversed, the writ sustained, and the relator discharged, because in that event the magistrate did not have jurisdiction to issue a warrant. To justify a magistrate in issuing a warrant for the arrest of a .person he must first be satisfied, from the facts presented to him, that a crime has been committed, and then, that there is reasonable ground to believe that the person for whom the warrant is asked committed it. (Code Crim, Proc. § 150.) This has been held by numerous authorities. (Swart v. Rickard, 148 N. Y. 264; Hewitt v. Newburger, 141 id. 538 ; McKelvey v. Marsh, 63 App. Div. 396.) And it- has alsp been held that where the facts are stated wholly upon- information and belief and the ground of the belief and" the source of the information are not given, that this is insufficient to confer jurisdiction upon a magistrate to issue a warrant. (People v. Cramer, 22 App. Div. 189; Warner v. Perry, 14 Hun, 337 ; Blodgett v. Race, 18 id. 132 ; People ex rel. Kingsley v. Pratt, 22 id. 300 ; People v. Olmsted, 74 id. 323.)
In McCourt v. People (64 N. Y. 583) the plaintiff in error stopped ; at the house of the prosecuting witness and asked his daughter, who was alone at the time, fo,r a drink of cider. She refused to let him have it, and - he thereupon opened the cellar door, went into the cellar, although forbidden by her to do so, and carried away a pail of cider. He was subsequently indicted, tried and- convicted for burglary and larceny. On appeal the judgment of conviction" Was reversed, the court holding that the evidence failéd to show that the accused entered the cellar with intent to commit a crime, and while there was evidence of an intent to obtain a drink of cider, and thus deprive the owner of his property, there was an absence of the circumstances ordinarily attending the commission of a larceny, and which distinguished it from a trespass, and all of the circumstances were consistent with the view that the transaction was a trespass merely.
In People v. Woodward (31 Hun, 57) the defendant was xfound guilty of grand larceny in stealing a horse from the owner’s stable and then killing it. At the conclusion of the trial the court was asked to instruct the jury that “ If, before the taking of the- horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute classed among misdemeanors, under the term of malicious mischief.” The instruction was refused'and on this ground-alone, the judgment was reversed and a new trial ordered. The case is cited with apparent: approval in People v. Bosworth (64 Hun, 78). In Devine v. People (20 Hun, 98), while a bartender was stooping to get a bottle, an outsider reached over the counter
- Second. Nor did he obtain possession of the money by false pretenses. It was not only voluntarily given to him by 'the' president of the insurance company, but it was received openly and avowedly to reimburse him Tor what he had previously advanced. The Case ’is devoid of every element from which it could be claimed possession was obtained by false representation. . ' . . ",/
Third. The only remaining inquiry, then, is, was the money' received in trust and thereafter converted to his own use?,' To this question, it seems to'me, theré Can be but one answer. It was not received in trust; on the contrary, it was received' to satisfy the relator’s claim. But it is urged by the People that the relator -was vice-president of the insurance company; was chairman of the finance committee, and as such was charged in law with the custody of the company’s property, for which reason it. was Ids duty when the same was received to turn it over to the treasurer, or the proper custodian of the fund." It undoubtedly' was the relator’s duty to see to it, so far. as he could, that the company’s property was preserved and used solely for corporate purposes, but this did not pre>ent him from receiving money from the corporation in satisfaction of a just claim, nor did it make- him guilty of larceny if he received money from the corporation in satisfaction of. an illegal claim .if he believed he had a right to receive it. ■ It may be, that the payment to the defendant was an vMt'ct, vires act, for which reason ' an action could be maintained by the corporation to reclaim- or réeóver such money, but if this be assumed, it does not show the defendant w-as guilty of larceny in receiving it, inasmuch as there
1 am of the opinion, therefore, for the' reason stated, that the order appealed from should be reversed, the writ sustained, and the relator discharged.
Patterson, J., concurred.
Concurrence Opinion
I concur in the opinion of Mr. Justice McLaughlin. The affidavits presented to the city magistrate do not show that the crime of grand .larceny in the first degree, as defined in the statute, was committed by the relator. It is conceded that criminal intent is an ingredient of , the crime, is a fact and must be proven as wéll as the overt' act. It is not charged in the information, nor is it shown by the affidavits, that the relator took, or received, or became possessed of the moneys of the insurance company feloniously. Criminal intent implies design, purpose and deliberation. It is not the act of taking the money which per se constitutes the crime of larceny, but there must be associated with the act the guilty purpose and design of depriving the owner thereof or appropriating the same to the taker’s own use, or that of soine person other than the owner. The fraudulent or felonious intent is an inten t without an honest claim of right. (1 Whart. Grim. Law [10th ed.], § 883.) It is quite true that there are .cases in which criminal intent will be inferred from the act itself.; that is to say, where that act is in its nature wrongful. In the present case the act charged as inculpating the relator was his receiving money of a corporation in reim
Thus far we have merely the following circumstances: That the relator, at the request of the president of the Hew York Life Insurance Company, advanced moneys to the treasurer of the Republican national committee for election purposes ; that at a meeting of the finance committee of the insurance company they were informed of the advances; that the members of the committee expressed the opinion that reimbursement should be made from the funds, of the
Those were all the facts laid béfore the magistrate by way of information. The statement of the relator is used as part of the information and to establish the facts; and upon all of them, as they are arrayed in the affidavits, there is nothing sufficient to justify thé imputation of criminal intent or a design on the part of the relator to steal the moneys of the insurance company by appropriating them to his own use, or to the use of some one other than the corporation. ' The facts are plain; what was done is evident, but the intent to steal by the commission of those acts is not made out. The most that can be said is, that the president and the relator and the other officers of the company-had no right to use the corporate moneys in the way in which they were used in this transaction ; but the specific intent to take the moneys of the company feloniously is not made apparent.
McLaughlin and Clarke, JJ., concurred.
Concurrence Opinion
The contribution of money to a political party for .legitimate campaign purposes, at the time of the occurrences here under consideration, was neither malum prohibitum nor malum in se. The Federal government having no control over insurance matters, the contribution to a national political party for such purposes in a national campaign by an insurance company would not only not be malum prohibitum or malum in se, but would not even be wrong ethically, to the extent of implying criminality, without alleging and proving a corrupt or wicked motive and a felonious or evil intent. There is no allegation in these papers of a felonious, criminal or wicked intent, nor is there any proof tending to establish such intent.
Patterson, J., concurred.
Concurrence Opinion
I agree with Mr. Justice Ingraham, and with my associates, that, the order should be- reversed and the .relator discharged, and will briefly state my views, A criminal or felonious intent is an essential element of the crime of grand larceny in the first degree." The crime with which the relator is charged cannot be" Committed either' unconsciously or innocently. The depositions and statement on ■ which the warrant was issued. not only do. not charge that, the money was taken or appropriated or received by the relator with intent to deprive the owner thereof, but the.facts set forth negative the existence of any criminal or felonious intent. ' They show that, this "money was Contributed tq, promote the election of the Republican national ticket, in the belief that the success of the candidates. ,of that .party would be beneficial to the insurance company. This is the. reason for the contribution disclosed in the record, and'it is ■the only inference that caii be drawn legitimately from-the. facts. - The object could not have, been to influence legislatión„fayorable to.
, I, therefore, vote for the reversal of the order and the discharge of the relator.
Order reversed and relator discharged. Order filed.