123 N.Y.S. 489 | N.Y. App. Div. | 1910
The judgment recites.that the defendant was convicted of a violation of the provisions of section 1298 of the Penal Law. That section merely provides that every larceny other than grand larceny in the first and second degrees is petit larceny. The acts with which the defendant is charged, set forth in the three counts of the information, might constitute a violation of the provisions of section 1290, subdivision 1, of the Penal Law, which coiTespond with the provisions of section 528, subdivision 1, of the Penal Code, or of section 1293 of the Penal Law, which correspond with the provisions of section 529 of the Penal Code. The substance of the charge is that the defendant obtained from one Bruno the sum of eighteen •dollars and seventy-three cents by false and fraudulent pretenses with respect to the validity of a check for that amount, which purported to have been drawn by one Benedict W aimer on the American Exchange National Bank to the order of Sperra Bros., and which- purported to have been indorsed by the payees.
In Order to constitute a violation of the provisions of section 1290, subdivision 1, of tile Penal Law, it was necessary to show that the defendant Obtained tlié lhoney from Bruno with intent to deprive him thereof, or to appropriate the same to his own use or to that of another, and that he obtained it “ by color or aid of fraudulent or false representation or pretense,” or by the aid of the check, and that the check was a “ false token or writing; ” and in order to constitute a violation of section 1293..of the Penal Law it was incumbent upon the People to show that the defendant “ wilfully, with intent to defraud, by color or aid ” of the check, obtained the money from Bruno knowing “ that the drawer or maker” of the check was “not entitled to draw on the drawee for the sum specified therein.” It is manifest, therefore, that it was necessary for the People to show either a false representation and criminal intent or knowledge on the part of the defendant that the check was invalid, or that the drawer or maker had not funds on deposit with the drawee sufficient to meet the same. This court held in People v. Whiteman (72 App. Div. 90) that the mere presentation of the check of another by the defendant id payment of his hotel bill did not constitute a representation that the drawer of the check had funds to his credit with
The defendant at the time in question was in the employ of Bruno. Bruno testified that the defendant “ came to the office one morning and said that he had a check, and his brother-in-law gave it to him; I saw it was indorsed by his brother-in-law Sperra, and I cashed it for him.” This is the only evidence that the defendant made any representation with respect to the check. His only representation, therefore, was that he received it from his brother-in-law. The only evidence with respect to who his brother-in-law was is the testimony of Bruno that he saw that the check was indorsed
It follows, therefore, that the judgment of conviction should he reversed and a new trial granted.
Ingraham, P. J., McLaughlin, Miller and. Dowling, JJ.,. concurred.
Judgment reversed and new trial ordered. Settle order on notice.