107 N.Y.S. 849 | N.Y. App. Div. | 1907
Two questions are presented on this appeal, one relating to the sufficiency of the indictment and the other to the sufficiency of the corroboration of the evidence of Swartz, an accomplice. There are two counts in the indictment. • The first alleges that the defendant on the 9th day of February, 1907, “with intent to'deprive and defraud a certain corporation called Degrion Contracting Company of the proper moneys, goods, chattels and personal property hereinafter mentioned, and of the use and benefit thereof, and to appropriate the same to their own use, did then and there feloniously, fraudulently and falsely pretend and represent to the said corporation-that one W. Jukus had been for some time prior thereto and was then and there a servant and employee' of the said corporation and shortly theretofore had worked for the said corporation as such servant and employee for timbeen days, and that the said corporation was then and there indebted to the said W. Jukus and there was then and there due and owing from the said corporation to him as such servant and employee for and on account of the said work the sum of forty-eight, dollars and seventy-five cents,” and that the said defendant did then and there feloniously and fraudulently obtain from the possession of the said corporation the said sum with intent to deprive and defraud the said corporation of the same, and of the use and benefit thereof and to appropriate the same to his own use. “ Whereas, in truth and in fact, the said W. Jukus had not been prior thereto and was not then and' there a servant or employee of the said corporation and theretofore had not worked as such servant or employee for the said corporation for thirteen days or for any time whatsoever; ” and there was not due and owing the said sum of forty-eight dollars and .seventy-five cents; and that the pretenses and representations so made by the defendant to the said corporation were in all respects utterly false and untrue as at the time of
It appeared that Eaton, the appellant, was employed by .the Hew York and Long Island Railroad Company to'make an independent check of the men employed in shaft 3 of a tunnel being constructed by the Degnon Company for the railroad company who relied upon the appellants reports in payment of the bills'of the Degnon Company. The appellant made a return to the railroad company every morning which stated the number and names of the men who were employed in shaft 3. • Every morning the railroad company received a report from the Degnon Company made up by Swartz, the timekeeper of that company, as to the men employed in shaft 3 the day before, and these returns from the Degnon Company were compared with the appellant’s returns as to the number of men employed. It seems that each employee had a number and the returns were made by these numbers and to each number there was affixed a letter which indicated the nature of the employment, so that if these two reports, that from the Degnon Company and that from the appellant agreed, the men were paid for the time thus certified; that when a man was employed by the Degnon Company he received a brass check upon which was a number by which he was identified while he continued to work; that on the pay day he presented that check and he then received the money due him contained in an envelope upon which was a number that corresponded with the number on the check that he presented. On the 9tli day of February, 1907, one' Abramson presented a check, with the number 3,178 and was paid forty-eight dollars and seventy-five cents. The timekeeper for the Degnon Company was Swartz and the timekeeper for the railroad company was the appellant. Abram-son testified that • on the ninth of February he presented check No. 3,178 to the Degnon Company at the foot of East Twenty-second street and received an envelope containing money ; that about three weeks before that he met the appellant, who told, the witness that his father had bought checks from people working in the tunnel, and he wanted the witness to go down and present one of the checks and collect the money for him; that the appellant
The other question presented is as to* the sufficiency of the indictment. The false representation was that one Jukus had been employed by the Degnon-Company, and that the Degnon Company was indebted to Jukus in the amount that was received. ,Tlie defendant, in his testimony, admits that he presented the check calling* for a payment to Jukus of forty-eight dollars and seventy-live centsthat he received the money; that-the check upon which the money was paid was given to him by Swartz; and the evidence is conclusive that the paymaster of the Degnon Company relied upon the report of the time sheets made by Swartz and the appellant that this man represented by that check was entitled to receive-from the Degnon Company forty-eight dollars and seventy-five cents, and upon the pdssession of the check by the man applying for payment. All of the elements of the crime were thus established. The allegation of the indictment, that the representations were made to the corporation and not to a particularly named agent of the corporation, is clearly sufficient. The indictment is under section 528 of the Penal Code which provides that “A person who, with the intent to deprive or defraud the true owner of his property * * * takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or- writing * * any money,- personal property, thing in action, evidence of debt or .contract, or article of value of any kind * * * steals such property, and is guilty of larceny.” Plow the evidence is undisputed that this forty-eight dollars and seventy-five cents was the money of the Degnon Company; and that the appel
It is quite clear that this, crime was proved by undisputed evidence, the only possible question being whether or not the defendant acted with intent to' deprive or defraud the true owner of his property, and there was certainly evidénce that justified the verdict of the jury.
The judgment should be affirmed.
Patterson, P. J.„ McLaughlin, Clarke and Houghton, JJ., concurred.
Judgment and orders affirmed.