117 N.Y.S. 662 | N.Y. App. Div. | 1909
Lead Opinion
The defendant was indicted for the crime of grand larceny in the second degree in having appropriated to himself a check calling for the payment of $500. ■ This check had been sent to him at the instance of one Robert P. Richardson .for the purpose of having the money represented by. it added to other moneys in the defendant’s hands and invested by him.
. The $500 check was received by the defendant at the city of New York and he placed -it to his individual credit in a "bank located in "the city of Brooklyn. He did not add the $500 to the $1,500 already in his hands and invest the samé in a $2,000 mortgage, nor "invest it at all, but appropriated it to his own use by checking it out from time to "time, paying, however, interest on the same as well as the $1^500 to Richardson, and representing to‘him that he had found a proper investment for the total" amount. The defendant lived and had whatever place of business he maintained in the city of "New York, and kept his check book there and drew checks on the fund at that place, which were paid by" the Brooklyn bank.
Under the evidence there is no question that the defendant received the money in a fiduciary capacity as agent for the owner and appropriated it to his own use, "and thereby committed the crime of larceny as defined by section 528 of the Penal Code. "His confession ás testified to and liis own testimony establish the misappropriation, and the verdict of the "jury is thus frilly Warranted "by the evidence.
The only questions for consideration are the various alleged errors committed upon the trial, which the defendant "insists are sufficient to call.for a reversal of the judgment of conviction.
In thé' course of the trial, and after a part of the'People’s case had been proven, the court permitted the district attorney to amend the indictment by eliminating therefrom the charge that the defendant had stolen a bank check of the value of $500 and substituting in its place the allegation that the defendant "had stolen $500 in money. The indictment contained two. counts, the‘first for feloniously taking and carrying away, and the second for feloniously
The defendant lived in the county of New York, and the check was mailed to him at that city from Philadelphia, and he . indorsed it and placed it in the Brooklyn bank for collection, and when collected the money was placed to his individual credit. The defendant kept his check book in New York and checked out the money for his own purposes by drawing checks in New York. The act of misappropriation was thus done, where the defendant himself was. The crime of appropriating to himself the moneys which he held as agent by drawing a check in New York upon a bank in another county and using the money for his own purposes was, we think, a crime committed in the county of New York, where he himself was at the time he drew the check and appropriated the money, and- not one committed in the county where the bank was located. Conceding that the defendant had the right to deposit the money in .his own name and committed no offense by so doing,'lie did not have. the right to draw it out by check and use it for his. own purposes. Presumptively where he drew the check was where he misappropriated it notwithstanding the fact that the check went to the bank of another county to be paid. If the defendant had proved that he went to the Brooklyn bank and drew out the money and there .appropriated it to his own use very possibly. he would have established lack of jurisdiction of the courts of New York county over the offense. Not having proved that, we think the fair assumption is that the crime was committed in the county where the defendant Was at the time he performed, the act which misapplied the money to his own use. But if this proposition be not sound the crime was at least partly committed in the county of New York, and section 134 of the Code of Criminal Procedure provides that when a crime is committed partly in one county and partly in
J We are also of the opinion that the changing of the allegation of the indictment from larceny of the check to that of the money represented by it and the proceeds of it, was within the power of the court. Section 293 of the Code of Criminal Procedure prescribes that upon the trial of an indictment, when a variance between the allegation and the proof, in respect to time, or the name or description of any place, person or thing, shall appear, the court may, in its discretion, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended, accord- . ing to the proof. If the defendant had been indicted for stealing a check and it turned out upon the trial that the paper which he had stolen was miscalled a check and was in fact a draft, clearly it would have been within the power of the court to permit the indictment to be amended to conform to the fact proven. Where the proof under an indictment for larceny of money shows that the defendant stole a draft upon which he afterwards obtained the money instead of stealing the money itself, there is no material . variance, between the indictment and the proof. (People v. Lammerts, 164 N. Y. 137; People v. Dimick, 107 id. 13.)
In People v. Lammerts (supra) the defendant, who was county treasurer of the county of Miagara, was indicted for appropriating to himself, moneys belonging to the county. He drew a check upon .the bank in which the moneys were deposited and obtained therefor a draft-payable to a creditor who had obtained a judgment against him, which draft was subsequently paid. The defendant claimed that these facts showed a fatal variance from the charge of the
The. stealing of a written instrument being an evidence of debt, constitutes the same crime of larceny as the stealing of money and the same penalty is prescribed, and the sum called for by the written instrument is deemed to be the value of the thing stolen. (Penal Code, § 545; People v. Fletcher, 110 App. Div. 231; People v. Peckens, 153 N. Y. 576.) Further illustrations of the propriety .of allowing amendments to indictments and the liberality of courts in that regard are found in People v. Jones (129 App. Div. 772), in People v. Langley (114 id. 427) and in People v. Coombs (36 id. 284; affd., 158 N. Y. 532).
On allowing the amendment the court permitted an adjournment and the defendant-does not claim that as matter of fact he was not prepared to meet the. charge of the larceny of the money but rests his claim of error upon the lack of power of the court to grant the amendment which was allowed. We think the court had power and that there was no error in permitting,the amendment of the indictment or in the ruling of the court that the crime was committed in the .county of Hew York.
The defendant further urges that improper evidence was admitted against the defendant’s objection and exception to prove asa part of the primary case admissions made by the defendant that he had
The judgment of conviction must be affirmed.
Ingraham and Scott, JJ., concurred; McLaughlin and Laughlin, JJ., dissented.
Dissenting Opinion
I dissent on the ground that in my opinion the amendment of the indictment was- unauthorized.
McLaughlin, J., concurred.
Judgment affirmed.