114 N.Y.S. 476 | N.Y. App. Div. | 1909
Lead Opinion
'The defendant was indicted and convicted pf the crizne of gz-and larceny in the second degree’in appropriating to his own use with ci’iminal intent the sum of $250 which he had,colleeted'as attorney for one Teresa Happel, lzis- client.
It was clearly for the jury to say whether they believed the story of the "defendant or that of the complainant and the other wit
The learned trial court instructed the jury that if they believed the defendant’s testimony they must render a verdict of not guilty, but on the contrary if they believed the evidence of the witnesses produced by the People and that the defendant had a guilty intent to appropriate the money to his own use at the time he received it, and did in fact so appropriate it, then they could and should find the defendant guilty.
The defendant urges as his principal ground for reversal of the judgment of conviction that the theory of the trial was wrong in that it was incumbent upon the People to show a demand on behalf of Mrs. Happel for the $250 belonging to her, and that until such demand no conversion or misappropriation could be committed because the money was rightfully in the hands of the defendant as attorney for the Owner. Such a demand was never made and the trial court held' that under the facts proved it was not a necessity because deception had been practiced and receipt of the money concealed and the share belonging to the complainant actually appropriated by the defendant, and that the length, of time which had elapsed from its receipt to the defendant’s interview with his client, together with the fact of the" actual appropriation by the defendant permitted the jury to find, if it saw fit, a guilty intent on the part of the defendant.
We think the court’s ruling in this regard was correct. The same question was considered by this court in People v. Birnbaum (114 App. Div. 480). In that case an attorney who was entitled to one-half the recovery settled the case of his client for $2,000 and falsely represented to her that it had been settled for only $1,300: In his opinion in that case Mr. Justice Laughlin said : “ On the facts -here presented a demand therefor by the client upon the attorney and refusal upon his part to pay would have completed the crime- She was deprived of making a demand by his concealment
The court broadly charged the jury that the complainant was entitled to only $250 of the $500 and that the defendant came lawfully into possession of the complainant’s share and did not need to keep the identical money which he received to pay over to her, but could mingle it with his own provided he had remaining $250 with which to pay her.
The question of necessity for demand was raised by counsel for the defendant in various forms and by many requests to charge. We do not deem it necessary to discuss them in detail further than to say that in view of the deception proved to have been practiced by the defendant upon his client respecting the receipt of the money, and his confession that he had used it for his own purposes and was unable to repay it, and the length of time which elapsed between its receipt by him and inquiry concerning it by the com- ' pláinant and continued concealment of the fact of collection, we do not deem failure to prove demand fatal to the conviction of the defendant.
At first blush some of the defendant’s requests to charge with respect to guilty intent might seem to have been improperly refused. In his main charge the court told the jury that they must find that the defendant had used the money for his own purposes. After various requests respecting intent had been made and various responses made by the court, the defendant’s counsel finally asked the court to charge that guilty intent unless coupled with some overt act could not constitute the crime of larceny. To this the court responded that he had all along assumed in charging as to intent that the defendant had used the money for his own purposes. In view of the charges made and this explanation of the court the jury could not have understood that the court intended to instruct them that a guilty intent unaccompanied by any overt act would make the defendant guilty of the crime charged against him. What the jury did understand was that notwithstanding the defendant may have appropriated the money to his own use, still it must have been with a guilty intent in order to make him guilty of any crime.
It is unnecessary to discuss further phases of the case, but only to
The judgment of conviction should be affirmed.
Patterson, P. J., Laughlin and Scott, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
The court, in its main charge, instructed the jury that if they believed “ that this defendant, when he collected that money, at any timé from the time he. collected it up to the time of his indictment, did not. intend to deliver the proper share to the complaining witness, then he is guilty of larceny as alleged, and your verdict will be guilty.” At the conclusion' of the charge defendant’s counsel requested the .court to charge the jury that no matter what the defendant’s intént “ may have been, that he had a right to the possession of the money until the minds of the parties met as to. the amount to which each was entitled.” Also: “ That unless there was a deception practiced upon the complaining witness a conviction cannot be had, and the defendant would not be guilty of larceny •until a demand was made for the sum due from him to his client.” And: “ That unless the jury find, as a matter of fact,, that there was deception practiced, they cannot convict. .The defendant would not be guilty, no matter what his intentions were, unless a demand were made upon him.” These requests were denied and exception taken in each instance, and in declining the last one quoted the court further emphasized what he had said in the main charge as to intent, saying:, “ If the jury believe that between August, 1907, and January 18th, there was an intent on the part of the defendant to misappropriate that $250 to his own use and not turn it over to his client — if they find that that intent existed, they may convict. And! it' was not necessary, to constitute that crime, that he should be guilty of any deceit to his client that he had or had not collected it.” Exception was duly taken' to this instruction.
I am of the opinion that the court erred in giving the instructions which it did, and also in refusing to charge as requested. When the Whole charge is considered, with the- refusals to charge, it will
As to whether the defendant’s neglect or refusal to pay to the complaining witness her share of the money was due to a dispute between them as to the amount which she was entitled to receive — as he says it was — was a close question of fact, and defendant’s claim is corroborated to some extent at least by the attitude of the complaining witness at the trial when she declined to accept $250, though assured it would have no effect whatever upon the trial.
There being such a close question of fact, I think the court erred in instructing the jury as it did as to intent and refusing to charge as requested by defendant’s counsel, and for that reason the judgment of conviction should be reversed and a new trial ordered.
Judgment affirmed.