154 N.Y.S. 504 | N.Y. App. Div. | 1915
Lead Opinion
The indictment charged defendant with forgery in the third degree in that he aided and abetted one Gertrude Gutman, an employee of Moses Gutman and Harry Gutman, copartners in trade, in corruptly altering a certain account book appertaining to the business of the firm. It is apparent, therefore, that whether defendant was guilty of a crime must depend upon whether the act of Gertrude Gutman was a criminal act. Briefly, the salient facts of the alleged crime, as proven by the witnesses for the People, were as follows: The two Gut-mans were copartners under the firm name of M. Gutman & Son, and Gertrude Gutman was a bookkeeper in their employ. Among the regular books of entry kept by the. firm was one called a deposit book, in which it was the custom to enter the firm’s bank deposits, and to record in such book, among other things, the name of the person from whom the check was received, the date of the deposit, and the bank in which such deposit was made. On or about November 7, 1912, the firm, being then in embarrassed circumstances, borrowed from the defendant $1,000, the proceeds of which loan, amounting to $982.50, was represented by defendant’s check, and thereupon the following entry was made in said deposit book: “ Ger-mania; Nov. 7; H. Fish; $982.50,” meaning that on that day they had received from defendant his check for $982.50 and had deposited the same in the Germania Bank. Thereafter defendant and Moses Gutman had a number of interviews at which the business and affairs of the firm were discussed. From information obtained at these interviews, it came to defendant’s knowledge that the firm was insolvent, and he advised the members thereof to make a general assignment for the benefit of creditors, and also procure certain friendly creditors to
The learned district attorney asserts that the defendant was indicted and convicted under the 1st subdivision of section 889 of the Penal Law, which he argues is sufficient in itself to sustain the conviction, but if this be not so, then that the 1st subdivision of section 889 read in conjunction with the 4th subdivision of the second portion of section 889 (as added by Laws of 1912, chap. 342), affords ample foundation for the judgment under review. Section 889bears the title “Forgery in third degree.” Subdivision 1 of the first portion of the section is as follows: <c A person who: 1. Being an officer or in the employment of a corporation, association, partnership or individuals falsifies, or unlawfully and corruptly alters, erases, obliterates or destroys any accounts, books of accounts, records, or other writing, belonging to or appertaining to the business of the corporation, association or partnership * * * Is guilty of forgery in the third degree.” It was settled by the decision in People ex rel. Isaacson v. Fallon (202 N. Y. 456) that the above subdivision was intended to protect employers against the acts of their own employees or others having a duty to keep true books of account of the business of the employer and who sought to defraud by means of false entries or alterations; that it “ ‘ was intended to be a protection against domestic or internal attack, against treachery and betrayal from within.’ ” It is apparent, therefore, that an employee who by the direction of or with the approbation or concurrence of his employer makes an alteration in the account books of the latter is not guilty of a crime within the meaning of the above subdivision, and that we must look further for authority to sustain the conviction of this defendant. Subdivision 4 of the second portion of section 889 to which I have referred pro
The judgment should be reversed and the defendant discharged.
Ingraham, P. J., Scott and Dowling, JJ., concurred.
Concurrence Opinion
I concur. Defendant was indicted under one clause of a section of the Penal Law, and the conviction is sought to be sustained under another which is not applicable.
Judgment reversed and defendant discharged. Order to be settled on notice.