118 N.Y.S. 989 | N.Y. App. Div. | 1909
The defendants appeal from a judgment convicting them of the crime of grand larceny in the first degree. The indictment charges the commission of that crime in two counts; one count charges the violation of subdivision 2 of section 528 of the Penal Code, i. <?., a felonious misappropriation of moneys in the possession, custody and control of the defendants as bailees, servants, attorneys, agents, clerks and trustees of the Eagle Savings and Loan Company ; the other, a larceny at common law, i. by trespass. The district attorney elected on the trial to stand on the first count of the indictment. The evidence discloses that the defendants-were trustees and officers of the Eagle Savings and Loan Company, a corporation organized under chapter 122 of the Laws of . 1851. Britton was president and Schroeder ivas vice-president. The larceny charged was the stealing of $4,000 on the 29th of February, 1908, one of a series of larcenies, aggregating $47,886.61, extending over a period of something like a year and one-half. One Wood was treasurer of the company and one Edgerton was teller and cashier. The latter had physical control of the cash drawer and kept a record of the cash. The defendants were interested in a mining scheme. The larcenies were all committed in substantially the following manner: Drafts, drawn upon the defendants by the mining company, were sent to a bank in Manhattan for collection. Wood, by the defendants’ direction, took the money from the cash drawer and either gave it to a messenger or he himself took it to the bank in Manhat
The articles of association of the Eagle Savings and Loan Company defined the duties of the president, vice-president and treasurer. The president, among other things, was required to countersign all checks, but might, with the consent of the board of trustees, delegate that power and authority to- the vice-president. He was required to perform all of the duties pertaining to the office of president and was required annually to appoint an examining finance committee of three members of the board of trustees to make an examination of the books and accounts of the secretary and treasurer, and was given direct control and power over the employees of the company. In the absence of the president the vice-president was required to perform the duties of the president. The treasurer was required to have the custody of all the moneys and keep the accounts of the same, to deposit the funds of the corporation in such bank, trust company or other depository as the board of trustees might direct and to make disbursements only upon proper vouchers. An executive committee of four members, to consist of the president, vice-president, secretary and treasurer, was required to have the general supervision and direction of the business in the intervals between the meetings of the board of trustees.
It is claimed by the appellants that they did not have the possession, custody or control of the moneys embezzled within the meaning of the statute; that Wood had the possession, custody or control of the moneys and alone had such relation to them as was necessary to constitute a felonious misappropriation within the meaning
It is next objected that the offense was not committed in the county of Kings where the office of said corporation was located; but that, if at all, in the county of New York where the money was paid over to take up the drafts. But there can be no doubt that the crime was partly commited in the county of Kings within the meaning of section 134 of the Code of Criminal Procedure. The crime was consummated when the money was turned over to the bank in New York in payment of the drafts. The first act, how-' ever, was the taking of the money from the cash drawer, pursuant to the instructions of the defendants, for the purpose and with the intention of misappropriating it.
Complaint is made of the following charge of the court, not excepted to: “ This case is peculiar in this respect, that the acts that these men are accused of here unquestionably were illegal and unquestionably were misdemeanors; but they are not to be convicted upon the guilty mind that was incident to that illegal action. The guilty mind that I speak of must be the guilty mind, the felonious or criminal intent, necessary to the crime of larceny.” A report was made by the defendants to the Banking Department which was manifestly false. That report was admitted in evidence. In making it, the defendants were doubtless guilty of a misdemeanor as defined by section 611 of the Penal Code, and it is evident that the purpose of the court in saying what I have quoted was to admonish the jury that they could not convict the defendants of the crime charged in the indictment because they had committed a misdemeanor in making a false report. It was intended for the benefit
Some time after the indictments were found, a composition agreement of some sort, the nature of which is not disclosed by the record, was entered into between the defendants and the said corporation. That agreement was offered in evidence, and it is now claimed that the court erred in excluding it; that it was admissible as bearing upon the question of intent. But an offer to make restitution after a theft has been discovered can have no legitimate bearing on that question. It doubtless is true that the defendants expected to make good their misappropriations before they were discovered. The case is a typical one of this kind of crime, but it was no less stealing because the defendants hoped to make good their theft, and their offer to compose the difficulty had no bearing upon their criminal intent when the money was taken. Of that the evidence leaves no doubt. The other points raised do not require discussion.
The judgment and order should be affirmed.
Hirschberg, P. J., Jenks, Burr and Rich, JJ., concurred.
Judgment and order affirmed.