138 N.Y.S. 517 | N.Y. App. Div. | 1912
Lead Opinion
The indictment was duly filed on the 20th day of April, 1911, and it contains six counts. The court Withdrew the 8d and 6th counts from the consideration of the jury, arid the other four were left to the jury, and a general verdict of guilty was rendered.
Each of the four counts of the indictment which were left to the jury predicates the larceny on the appropriation by the defendant to his own use of four checks, or the proceeds thereof, of the Nineteenth Ward Bank, made on the 23d day of April, 1910, payable to the order of the Carnegie Trust Company. One of the checks was ori the National Reserve Bank for $5,000, one on the Chase National Bank for $10,000, one on the Mercantile National Bank for $25,000, and one on the Empire Trust Company for $100,000. It does not definitely appear to whom the checks were delivered, but they were presented to the vice-president of the Carnegie Trust Company, and were indorsed:
“ For credit account of W. J. Cummins, “CARNEGIE TRUST COMPANY,
“R. L. Smith,
“Vice-President,”
the indorsement, other than his signature, having been written by other employees of the Carnegie Trust Company, and they were thereupon indorsed by the defendant, as follows:
“ For deposit '
“W. J. CUMMINS,” ■
and deposited to the credit of the defendant’s individual account in the Carnegie Trust Company, in which his balance at the commencement of business on that day was $765.19. The
The theory of the prosecution is that the beneficial ownership of the checks, and of the proceeds thereof, remained in the Nineteenth Ward Bank, and that the moneys were advanced to the Carnegie Trust Company as agent, bailee or trustee to take up certain loans that had been made to Warner Van Norden and Warner M. Van Norden on the security of shares of the capital stock of the Twelfth and Nineteenth Ward Banks, and to hold the collateral thus released until it could be sold by the defendant or pledged elsewhere, and the proceeds used to take up two notes for $70,000 each, one made by Charles A. Moore, Jr., and the other by the Merchants and Manufacturers’ Securities Company, made for it by said Moore as an' officer, each bearing the same date as the checks, upon the discount of which in form the checks were issued. The Van Nordens owned a controlling interest in the capital stock of the Van Norden Trust Company, which controlling interest had been purchased by the defendant and his associates, and also a controlling interest in the capital stock of the Twelfth and Nineteenth Ward Banks, most of which had been pledged with banks and trust companies as security for their individual notes; and for the purchase of this stock the defendant held an option, in form running to him, but in behalf of himself and his associates. These banks were known as Van Norden banks. The younger Van Norden had attained considerable notoriety of a character which it was deemed by the officers and directors of the trust company and the Nineteenth Ward Bank might seriously and prejudicially affect the trust company and these banks. The defendant was a director of the Carnegie Trust Company, and the chairman of the executive committee thereof, and he was likewise a
“Carnegie Trust Company.
“New York, April 20, 1910.
“Mr. Watkins Crockett,
“President Van Norden Trust Company, Fifth Avenue, New York City:
“Dear Sir.— We acknowledge receipt hereof from the Van Norden Trust Company of $195,000, the proceeds of the following notes:
“ Demand note of Martin J. Condon, $75,000.
“Joseph B. Eeichmann, $60,000,
“Charles A. Moore, Jr., $60,000.
“The above amount to be used by us toward the payment of Carnegie Trust Company stock at $1.75, Nineteenth Ward Bank stock at $2.50, Twelfth Ward Bank stock at $1.
■'We agree to hold in trust for you, or any trustees named by you, the above collaterals as paid for by us at prices mentioned above. ■ Whatever part of the above amount is not*101 employed in the purchase of the above stocks shall be subject to your order at any time.
“Yours very truly,
“RL. SMITH,
“ Diet. E. L. S. “ Vice-president.”
and thereupon he and Moore took this letter, together with demand notes by Reichmann and Moore, for $60,000 each, to Crockett, whereupon Crockett raised the objection that the notes and letter were not in accordance with the understanding at the directors’ meeting, and was informed by the defendant that they were as hu and Martin had agreed upon, and Crockett, after communicating with Martin by telephone, caused two checks to be issued for the amount of the notes, one on thu Van Norden Trust Company and the other on the Chase National Bank, each for $60,000. The vice-president of the Carnegie Trust Company indorsed these checks over to the order of Moore, and they were deposited to the credit of Moore’s individual account with the Carnegie Trust Company, and according to the testimony of the vice-president this was done pursuant to a direction given by Reichmann, the president of the Carnegie Trust Company, who, in the presence of the defendant and of Moore, stated that they were given for the proceeds of individual notes discounted at uptown banks and should have been made payable to the order of the individual. On that day the defendant received a check from Martin for $100,000 with which tv purchase Twelfth and Nineteenth Ward Bank stock to that extent and deliver it to Martin, and ho deposited the check to his individual credit in the Carnegie Trust Company. At the time of this deposit to the credit of Moore’s account his balance was only about $1,000, and on that day he drew a check against it for $100,000 in favor of the Mercantile National Bank, in payment for the stock which the defendant purchased for Martin, and on the 4th day of May, 1910, Moore drew a check to the order of the defendant, which was credited to his said account, for the balance of the $120,000 received from the Van Norden Trust Company. On the 22d day of April, 1910, the third note specified in the letter from the Carnegie Trust Company to the Van Norden Trust Company relating to the trust was presented to
None of the collateral released by the. use of these funds was held by the defendant for the account or use of the VanNorden Trust Company, or the Nineteenth Ward Bank, nor did he. account for any part of it to the Carnegie Trust Company. He used it as if it were his own in securing and 'redeeming his individual obligations, and those of his associates, and of the corporations in which he and they were interested. During the presentation of the People’s case, it appeared by a statement of counsel for the defendant that he would contend that the defendant did not use these funds for his. individual benefit, but that he received them for the purpose of protecting certain loans, and that one Lyman, “ as trustee,” was to hold the collateral “ in lieu of this money,” and offered to give the district attorney a list of the stock claimed to have been acquired under this arrangement, and a statement with respect to the disposition of the stock; and it appears that he subsequently did this. The fact that some of the fund was used for the purpose of taking up Van Norden loans lent plausibility to this contention, and the People subsequently traced the use of the collateral released by the use of these funds as far as they were traceable. Some of this evidence was received over the defendant’s objection and exception. We think that it was entirely competent as bearing on the intent of the defendant, which was an important element of the crime, and on his motive as well. Although the trust letters were not strictly accurate, according to the testimony, it is impossible to satisfactorily explain them on any other theory than that this money was advanced by the Nineteenth Ward Bank for a particular or special purpose, and that it retained the beneficial ownership, merely parting with possession in trust, or on an agency to use the funds for a specified purpose. The defendant points to uncontroverted evidence showing that no entry or record was made by the Nineteenth Ward Bank with respect to the alleged trust agree
Error is also predicated on the denial of a motion to take the 4-th and 5 th counts, which charge larceny from the Nineteenth Ward Bank in the common-law form and as its agent, bailee or
The learned counsel for the defendant contended at the outset that the constitutional rights of his client had been invaded, and that the indictment should have been dismissed, or a nolle prosequi entered, or a new trial granted, and that on a new trial all evidence relating to transactions, concerning which the defendant was compelled to testify before the grand jury, be excluded. The defendant was arraigned on the indictment and pleaded not guilty on the 21st day of April, 1911. Thereafter, and on the same day, he was subpoenaed to appear before the grand jury which indicted him, as a witness on an investigation then pending against Charles H. Hyde, the city chamberlain. He obeyed this subpoena, and on appearing was
“ Q. Now the district attorney of the county makes this statement to you, Mr. Cummins.”
The stenographer then reads to Mr. Cummins as follows: “ Now, Mr. Cummins, for the sake of the record, I want to say this, that except so far as your testimony given here and now may concern Mr. Hyde and him alone, the district attorney of this county stipulates that such testimony which you may give here to-day in this proceeding' shall not be used against you in any way, shape or manner. Notwithstanding that stipulation and assurance, and notwithstanding the provision of 381 of the Penal Law, do you still refuse to answer % Mr. Cummins: Yes.” He would not even say whether he declined to answer on the ground that the answers would
■ “Yes, because lam subpoenaed Monday, and if there is [sic] any other questions I would be glad to answer them, because I have been given permission now.” When the examination was resumed his attitude had evidently undergone a change, for he then refused to testify, excepting with respect to the particular questions he had been ordered to answer, and he specifically declined to answer whether the Carnegie Trust Company needed $130,000 to make its reserve fund sufficient under the law at the time referred to. when he was asked about endeavoring to get a loan from the Northern’ Bank, on condition that Hyde deposit an equal or greater amount of city funds with it. He thereupon declined to answer numerous questions relating to the same transactions on the ground that they were not the particular questions he had been directed to answer, and that his answers would incriminate and degrade him; but finally he consented to answer, and stated that on or about the 22d day of August, 1910, at an interview between Robin and Eeichmann, it was arranged that the Northern Bank would loan $180,000 to the Carnegie Trust Company, and that he expressed to Eobin his appreciation therefor, and arranged by telephone to have Eobin meet Hyde at the latter’s office, and a few minutes later joined Eobin, Eeichmann and Hyde there.
In the course, of this examination the defendant repeatedly
The defendant was properly convicted and the judgment should be affirmed.
Ingraham, P. J., and Scott, J., concurred.
Concurrence Opinion
I entirely concur in the opinion of Mr. Justice Laughlin, and only wish to add a few words upon the claim by the defendant that in some way in this action he was compelled to give evidence against himself which would invalidate his conviction. The constitutional provision which it is claimed was violated is contained in section 6 of article 1 of the Constitution and provides: “Ho person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law. ” This provision was adopted to maintain and enforce one of the fundamental provisions of the English common law, that a person could
Concurrence Opinion
I concur in the result reached, as well as in the opinion of Mr. Justice Laugiilin, except as to the constitutional question involved; and upon that point I concur in the affirmance of the judgment upon the ground' that the evidence now complained of was received without objection upon the trial.
Dowling, J., concurred.
Judgment affirmed. Order to be settled on notice.