116 N.Y.S. 870 | N.Y. App. Div. | 1909
The appellant and John Gundlaeh Were jointly indicted for the crime of grand larceny in the first degree. Barry had a separate trial. He was found guilty under the second count of the indictment which charges larceny as bailee, trustee and agent, under the 2d subdivision of section 528 of the Penal Code, of thirty-six promissory notes for $3,000 each.
Sherman & Co. manufactured safety razors and pocket cutlery at Kéyport, iST. J. Desiring to increase its plant and extend its. business, on April 1, 1907, the board of trustees authorized the officers to issue $150,000 worth of notes to obtain money for such purposes.
Mr. Sherman, the president of the company, saw an advertisement in the Sunday Herald in the early part of April,., 1907* which he answered. He received in reply a letter from Gundlaeh, dated April. 16, 1907, who stated that he was in a position to use a large amount of paper. “ I have several parties who will indorse the paper and use one-half of it, paying their half on maturity or shortly before, so you will take care of your paper. This is done without any harm to your credit or banks, and your paper Will go to different cities for discount. * * * The cost to you for discounting will be the legal discount and 6f0 * * >* commission for me on your share. If you entertain this proposition, winch is certainly the cheapest to you, I wish to hear from you by return mail, so I can make my dispositions and get you returns by the first part of next week.” Sherman answered the letter and, with his treasurer, Hull, went to Hew York and met Gundlaeh on April 21, 1907. Gundlaeh stated that he had a number of principals who would use their paper in very large amounts and very quickly; that the paper would be negotiated out of town and not in Hew York city, and would not interfere' with their credit. Gundlaeh spoke of one of his principals in Philadelphia being very wealthy and owning many
“New York, Febry. 14th, 1907.
“Mr. John Gundlach:
“ Dear Sir : — Herewith I agree to pay you a commission of 5% on my one (-<■,-)
“ CHARLES BARRY.”
Gundlach then said that Barry could use a large share of the. Sherman & Go. paper and could discount more. Barry came into the room, whereupon Gundlach said, “ Oh, there is my principal now.” There was no introduction at this time. Gundlach and Sherman exchanged references and parted-after some general talk. Gundlach gave Sherman a proposed form of contract which was drafted by Barry. Gundlach was a German who could not write English well and Barry drafted the letters and documents, signed, sent or delivered by Gundlach, who copied them. Sherman went back to Keyport and on the next day, April twenty-fourth, he wrote Gundlach a letter: “ In accordance with your previous communication and our conversation of yesterday we enclose you herewith 36 notes of this corporation. * * * . These notes are sent you with the distinct understanding that they are to be discounted and that half of the proceeds of each note is to be forwarded to us in bankable funds within twenty-four hours after the discounting. The other half or portion of the proceeds is to be retained by the parties through whom the notes are discounted or negotiated, with the understanding that each of us — that is, the party negotiating the discount and retaining half the proceeds as well as ourselves—will pay our respective portions promptly on maturity of each note either in cash or negotiable paper. It is understood that the cost to us for this discount shall be the bank discount on our portion as well as a -5% commission on our portion. The said commission to be deducted at the time our portion of the proceeds is remitted to
On the twenty-fifth of April G-undl'ach acknowledged in writing the receipt of the notes and wrote: “ Kindly expect me at your Broad St. Station to-morrow afternoon abt 12:45 p. m. as Mr. Eisenberg requests the indorsement of your officers.” In a previous letter Gundlách had written : “ Beg to submit one of ihy parties who is in the Fur Import business, A. M- Eisenberg, 40 W. 34 St. * * * "While he is not using any credit here I understand he is not rated, but is in a position to discount $-50,000 or more of your paper; that means that he must be of high standing with, his banks,” Gundlach ' appeared the next day and examined the manufactory and.the officers indorsed the notes as. requested.
A short time after this Hull, the treasurer, went to Hew York and met Gundlach and Barry. Gundlach introduced Barry and Hull asked- what position the defendant held with Gundlach. Gundlach said, “ Why he is my principal, lie is my -adviser.” Whereupon Hull said, “Mr. Gundjach, do you realize that we have been doing business with you only ? How if this man is connected with you. I want to know what kind of position he holds with you ? ” “ Well,” lie said, “ Mr. Barry can-- speak for himself.” "Hull said, “ Mr. Barry, will you please give me some references.” Whereupon Barry proceeded to tell him that he was' the principal attorney in the Cronin murder casé in Chicago; that he was the secretary of some irrigation company, some -$30,000,000 corporation of Chicago; that he was the president: of some German
The evidence shows a number of communications between Gundlach and Sherman & Co., which were drafted by Barry, but that no money was ever received by Sherman & Co. The only thing it ever did receive for its- $108,000 of notes was a $1,500 sight draft of one Trautwein which was unpaid and protested. These notes were hawked about by Barry and Gundlach and finally, Sherman & Co. receiving no returns, attempted to get them back. On June first the company wrote to Gundlach demanding the return of all the notes. To this Gundlach replied in a long letter drafted by Barry, winding up as follows: “ In conclusion must state that I have considerable of your paper out-—all in absolutely responsible hands; that in each case a contract relation has been established and that I could not, if I were disposed, cancel same without the consent of the other parties, and that I do not propose to involve myself in litigation on your account. You unaware apparently unappreciation of faithful, loyal service.”
From all the evidence the. jury were justified in finding that Barry and Gundlach. were working together in the scheme..,
The appellant claims that assuming, for the purposes of argument, every fact appearing by the People’s case as true, there exists no crime of larceny as bailee, trustee and agent; that Sherman & Co. having voluntarily given these notes for the purpose of having them discounted and subsequently having demanded them back, and Gundlach having refused to do so upon the ground that he was acting under legal advice, claiming a contract which Sherman & Co. had.no right to break, it was a, matter for the civil courts to determine. ,
The force and effect of this argument is .destroyed, however, by what occurred after the demand and refusal to return the notes on the seventh of June. Campbell testified that on the thirty-first of. May he received about $60,000 worth of these notes from-. Gundlach and- Barry; that Gundlach and Barry used to call at his office
But the .appellant urges that Campbell was a convict and an accomplice and was not corroborated. Section 399 of the Code of Criminal Procedure provides that “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends td connect the defendant with the commission of the crime.”
The plain language of this provision and the interpretation thereof. by the courts has established the rule that the corroborative testimony need hot of "itself be sufficient to prove that the defendant committed the crime, but that it is enough if it merely tends to connect him with the commission of the crime. (People v. Hooghkerk, 96 N. Y. 149 ; People v. Elliott, 106 id. 288.) As stated in People v. O'Farrell (175 N. Y. 323): “If there is evidence fairly tending to show such connection so that the conviction will not rest entirely upon the evidence of the accomplice, then the question whether the evidence is a sufficient corroboration to induce the jury to find against the defendant is for it to determine.”
The learned court in its charge in four separate requests tendered by the defendant, carefully gmd sufficiently instructed the jury that it could not convict upon the testimony of Campbell alone, unless there was other evidence in the case tending to connect defendant with the conversion of the notes.
There is abundant evidence of the direct participation of Barry in all the transactions in relation to these notes down to the time of the demand for their return and refusal on the seventh of June. There is not a particle of doubt but that the notes were redelivered to Campbell after they had been returned by him, and after the seventh of June. This is positively testified to by G-undlach, a witness produced by the defendant, and evidenced by the receipt in writing givén to Campbell by Gundlach, so that the conversion after the seventh of June is proved by uncontradicted testimony.
The defendant testified that he never went to see Campbell in his
Park testified that the first time he saw Barry it was at 150 Nassau street, in Campbell’s office, where he was talking to Campbell, in the latter part of May, 1907; that he saw the defendant there again about five or six times after the first time; that he was employed by Campbell at that time at that office and had taken a letter or message to Barry; that he went on a vacation about the middle of July and that he saw Barry in the office talking to Campbell at various times down to that date; that he came in with Gundlach.
Bighter, who had desk room in the same offices, testified that he saw Gundlach come in with Barry and talk to Campbell; that both of them talked to Campbell. The first time was in the month of May; that he had left that office on the seventeenth of July and that to the best of his recollection Barry came into Campbell’s office and talked to Campbell down to the time that he left.
The testimony of these witnesses, therefore, is a flat contradiction of the defendant’s statement and a corroboration of Campbell, in so far as it sustains his evidence that Barry was in the office and talking with him at or about the time tliat he testified to. Barry wrote a letter to Gundlach, dated August third, as follows: “ For months I advised you to take legal steps to recover the Sherman Co. (Keyport, N. J.) notes from Stein and Campbell, and repeatedly told you that if you failed to do so and got into trouble you need not come to me for aid of any kind. Yesterday I urged yon for the last time. In reply you not only refused to follow my advice, but became disrespectful to me. As a consequence, that ends our relations, both present and future, and you are hereby notified not to use my name as your personal or business reference. This is my ¿así communication to you and requires no reply from you.”
This letter is entirely inconsistent with his testimony that he knew nothing whatever about the second delivery of the notes until months subsequent, and in answer to the question by his own counsel, “ Did you directly or indirectly or remotely aid, advise, counsel or abet in the second delivery of any notes to Campbell ? A, I did not, and
We think that, taking this evidence in connection with all the other evidence in the case which establishes the active participation of Barry in every step of the preliminary proceedings, a pure question of fact was presented for the jury; that the evidence corroborated Campbell, tended to connect the defendant with the commission of the crime, and entitled the jury to draw the inference which the verdict establishes it did draw.
The appellant contends that the cross-examinátion of the defendant was improper, and it certainly did cover a pretty wide range; but as the defendant commenced his own examination in chief with an account of his early life, from the time of his birth, his education his business, his associates and his friends, presumably for the purpose of convincing the jury that it was not probable that such a man could be guilty of the crime charged, he ou’ght not to complain if the cross-examiner marched through the door which he had so widely opened. “ It is the well-established rule,” said Werner, J., in People v. Hinksman. (192 N. Y. 421), “ in this State that a defendant in a criminal action who offers himself as; a witness may be interrogated ás to any vicious or criminal act .of his life,” citing People v. Webster (139 N. Y. 73); Brandon v. People (42 id. 265); People v. Giblin (115 id. 196); People v. McCormick (135 id. 663) and People v. Casey (72 id. 393). We do not think the discretion of the court upon the cross-examination of the defendant was improperly exercised.
The appellant contends that some remarks of the assistant district attorney in the summing up in alluding to the absence of character witnesses for the defendant was reversible error, but the learned court in its charge.said: “At the District Attorney’s request I advise you to disregard the comments made by the District Attorney on that evidence, and the comment is withdrawn from your consideration.” So that the motion which defendant’s counsel made that the jury be instructed to disregard the remark of the. district attorney, and that it be stricken Out, was granted by the court.
Upon the whole ease we find no reversible error. It follows, therefore, that the judgment appealed from should be affirmed.
Patterson, P. J., Ingraham, Houghton and Scott, JJ., concurred.
Judgment affirmed.
So in record.— [Rep.
So in record.— [Rep.