People v. Colmey

102 N.Y.S. 714 | N.Y. App. Div. | 1907

Houghton, J.:

The defendant was indicted- in January, 1902, charged with the crime of grand larceny, in the first degree, in having obtained $600 from one James A. Smith by falsely representing that a certain bond of the Hew York and Hempstead Railroad -Company, of the face value of $1,000, was- a subsisting and outstanding, first mortgage bond against said railroad not yet due, whereas, in fact, it was. not outstanding and subsisting, but had been foreclosed and was of no value.

The tidal was not -had until January, 1906, and it resulting in a conviction as charged, the defendant appeals, "alleging -that the People failed to establish that any false representations were made by him, or that the bond was worthless,, and that many errors prejudicial to him were committed in the course of his trial.

We think the People fully established that the defendant falsely represented that the bond was. a valid and subsisting lien of the Hew York and Hempstead Railroad Company. The evidence shows that the defendant, calling himself Charles A. Moore, in company with-a man who styled himself James W. Morgan, represented to the complainant that he was an attorney at law and acting for a corporation known as the International Trust Company^ located on Liberty street in the city of Hew York» which held the bond in question as security for a loan which it had made to Morgan of $600, and that Morgan, who was about to depart from the city of Hew York, was fearful that during his absence the trust company would sell the- bond, and, therefore, desired that complainant loan that amount of money on it and hold it until Morgan could redeem it. The defendant had the bond in'his possession, and stated to. complainant that he had investigated the subject and knew that the bond was valid, and that the coupon for the last interest "had only recently been cut off. To these representations the complainant-replied that if the defendant was attorney for the company he would take him as his own attorney and rely upon his advice and pay-him for it, and loan the money; and the next morning the defendant delivered the bond to complainant and received from him therefor the sum of six hundred dollars, and in addition a check for twenty-five dollars for his services in the matter. The complainant testified that he relied upon these representations, and that he subsequently endeavored to find th'e International Trust Company but could discover no such corporation; and that he believed that Morgan was a man of wealth as he was represented to be. He subsequently learned, through defendant’s admission, that liis name was not Morgan but “ Jimmy McHally, the old green goods man.” The proof was ample toó that the bond was worthless. The record on,appeal contains a stipulation summarizing the exhibits introduced by the People, with respect to. the foreclosure of the railroad mortgage,. which shows that on July 19, "1815, in a foreclosure action brought by the' Farmers’ Loan and Trust Company against the ■ Hew York and Hempstead Railroad Company, a decree of foreclosure and sale was éntered, - foreclosing the mortgage given to secure the bond in question with others, and appointing a referee to sell the property covered by the mortgage. The referee reported that on the 23d day of September, 18J5, he sold all the lands and premises mentioned in the mortgage and judgment for the sum of $100. Ho report of deficiency appears, nor does any order of confirmation of the sale appear to have been entered.

The particular bond in question was not proven before the referee, but two hundred and over of bonds of the same issue were proven on which default had been made in the payment of interest by the company. The defendant insists that the bond in question might be of some value because the mortgage covered rolling and other stock as' well as real estate and rights of way, and only the mortgaged .lands and premises were sold. It must be assumed that the judgment was regularly obtained, and that the sale was properly conducted and that a sale having been had, all that the railroad' company owned which was covered by the mortgage was included in the judgment and sold. The bond was, therefore, cut off by the foreclosure and was worthless, and the falsity of defendant’s representations in this respect was clearly established.

It is urged as error that the People were permitted to prove the falsity of various other representations, such as the non-existence of the International Trust Company, and the attorneyship of defendant for it, and that the man known as Morgan was not a wealthy man nór a horseman, as the defendant stated, but was a notorious criminal. All these minor false representations were connected with the principal false representation alleged in the indictment, and were made at the same time, and were simply false incidents surrounding the main false representation charged and relied Upon. We think they were a part of the res gestee and that evidence concerning them was properly received.

It is also insisted that error was committed in allowing proof that the defendant was arrested or found under arrest, at various times. Some of the occasions under which the witnesses speak of the defendant as under arrest, are mentioned manifestly as excuses for not then apprehending defendant and bringing him to trial on the present indictment. In one instance the defendant was under requisition to the State of Illinois under an indictment found in that State against him under another name than the one under which he was known to complainant; and another occasion relates to the time when he was finally apprehended, he then being in the custody of other officials.

The evidence respecting the different names under which defendant traveled and was known in various parts of the world, and the conditions of arrest and extradition under which he was found, we think was competent not only for the purpose of identification but for the purpose of showing flight from the scene of his alleged crime in this State. If any errors were committed in the development of these facts, they are not sufficiently grave to require a reversal of the conviction.

It is also claimed that evidence of the contents of the twenty-five-dollar check which complainant gave to defendant for his alleged services as attorney was permitted to be given without producing the cheek, which was accessible, because it was in the custody of. the People. If error was .committed in this respect, it was entirely harmless. The defendant was not indicted for receiving the money on that check, or obtaining thé money which he did by it. Even if it might have shown on its face- that the defendant was acting..as attorney for the. complainant, and that it was given in payment for his sérvices as such, this fact was not disputed but was admitted by the. People. The fact that ¡the defendant was acting.as attorney for complainant would, not relieve him from the consequences of his false representations, and pretenses that he had investigated the validity of the bond and knew that it was an outstanding and subsisting obligation agaihst the. railroad company^ and' that interest had only recently been paid on it. ' ■

H Or was any reversible error committed with respect to the. evidence of the witness Buchanan that lie saw the defendant in Paris in the summer of 1902." It is insisted that the evidence of the witness McOonville is based upon a portion of this evidence although it had been stricken out by .the .court. It was proper'for klcConville; to state from what source he received his information as to the: whereabouts of the defendant, even if the person who gave it to him. had not been produced as a witness. The defendant was under indictment and was .traveling under many aliases, and his apprehension under the present indictment was being sought. How he happened to escape apprehension for so long a time, and the efforts which were made to locate him, were proper facts to be developed upon thé question of defendant’s flight, which, if established, was some evidence of Ins guilt.

The defendant is plainly guilty, and we see no reason for disturbing his conviction, and it must he affirmed;

Patteesoe, P. J., Imgeaham, McLaughlin and Lambeet, JJ.,. concurred;

Judgment, affirmed. Order filed.