102 N.Y.S. 758 | N.Y. App. Div. | 1907
Lead Opinion
The defendant appeals from a judgment convicting him of the crime of grand larceny in the second degree upon which he was sentenced to a term of imprisonment in State’s prison of not less than one nor more than four years.
The validity of the judgment appealed from is attacked principally upon the ground that, taking all the evidence together, it is insufficient to sustain the finding of the jury that the defendant was guilty of the crime charged and for which he was convicted.
The evidence, in substance, tends to show that on the 4th of January, 1906, the defendant went to the place of business, of the complaining witness (one Behrens) for the purpose of purchasing, as he said, a diamond ring, and on being shown several loose stones, selected one to be set in a ring; that the stone thus selected was set in a ring and on the following day Behrens delivered it to the defendant, who at that "time sighed a memorandum stating that one fourteen-karat solid gold tooth ring, Homan colored, set with solitaire diamond, weighing 3/4 L. 1 /16 1/64, value $115, was consigned by John Behrens & Co. to defendant, returnable on demand; that the same was not sold, nor did title thereto pass; that the conditions on which the consignment was made were in writing, which the defendant read carefully before he signed the
It was also made to appear that at the time the ring was delivered' to the defendant he gave to Behrens & Go., or Behrens, the complaining witness, five dollars in cash and a check of a third party, payable to- his own order, and which was indorsed by him, for twenty-five dollars, which was not paid, the same being returned to Behrens marked “ H. G-.; ” that subsequently' Behrens, in the presence of his son, demanded the return of the ring, and the demand was refused.
The material part of the evidence offered on the part of the People was not disputed, but the defendant testified that when he purchased the ring Behrens weighed the diamond selected and told him it weighed a karat and a 'quarter, and that after the ring had been delivered to him he ascertained, by having it weighed, that this was. not its correct weight and he thereupon stopped payment of the check referred to and refused to make further payments; that subsequently he offered to return the ring if Behrens would give back the five dollars he had paid and return the check. This Behrens denied, and he was corroborated by his son as to the con-_ yersatión which took place at the time the demand was made for the return of it, after the check had been dishonored. That a demand was made for the return of the ring was not denied by the defendant.
This, in substance, is the testimony offered by the respective •parties, from which it appears that the defendant signed a memorandum at the time he accepted the ring, Which showed the weight of the diamond to be a little less than three-fourths of a karat. It was, therefore, unnecessary for the defendant to apply to other jewelers to ascertain the weight of the stone, nor could he in any way have been deceived upon that subject. He knew from
The charge of the learned trial court was as favorable to the defendant as could be reasonably asked. He' charged the jury that it must acquit if it reached the conclusion that the defendant offered to return the ring, or if he did not receive it as bailee. The defendant obtained the ring from Behrens & Co. He did not pay for it, and it was specifically agreed that until the deposits amounted to the price asked, viz., $175, the title to the ring was to remain in Behrens & Co., to whom the same should be returned on demand. He did not make the payment agreed at the time the ring was delivered, nor did he return the ring when demanded. Having failed to return the ring when demanded, he was, under the. pro visions of section 528 of the Penal Code, guilty of larceny.
The judgment of conviction, therefore, should be affirmed unless there is merit- in defendant’s contention that errors were committed in the admission of evidence. During the defendant’s direct examination, he testified that he had been arrested in connection with a ticket agency of a steamship line but was discharged. On cross-examination he was asked, and permitted to answer against objection and exception, if the steamship ticket business that he was connected with was not that of selling^ to poor Jewish immigrants worthless orders for steamship tickets and if he did not receive, in one instance, eighty-three dollars for selling worthless orders for such tickets. To the first question he answered that he did not get money on false tickets from any one, and to the second question, that he sold an order for tickets which would be honored. He contends that his exception in each instance was well taken.
I am of the opinion that the ruling was proper and the evidence admissible. The defendant having offered himself as a witness, the People had a right to prove specific facts which tended to discredit him or to impeach his moral character. (People v. Irving, 95 N. Y. 541; People v. Webster, 139 id. 84.)
In holding 'that the admission of this evidence was not error, the cases cited by the appellant have not been overlooked, but the dis
The judgment of conviction is z-ight and should be affirmed.
Ingraham and Lambert, JJ., concurred .; Patterson, P. j., and Houghton, J., dissented.
Dissenting Opinion
I dissent from the decision of the majority of the court affirming the judgment in this case. The defendant was convicted of the; cz-ime, of grand lai-ceny in the second degree. There wez-e two' counts in the indictment, the first- chaz-ging the defendant with feloniously stealing, taking and carrying away a finger ring of the value of $175, the property of one John Behrens. In the second count he was chaz-ged with having in his custody as bailee the same property referred to in the first count, and with feloniously appropriating the same to his own use with the intent to dépri've and defraud the said John Behrens of the same and of the use and benefit thereof. On the trial, the case was submitted to the jury upon the second count.
I am of the opinion that the evidence is insufficient to sustain the conviction, in that it fails to show that the defendant retained the' property with the intent to depz-ive and defraud the true owner of the same. The undezlying facts of the case are' plain. The defendant and John' Behrens had negotiations respecting the sale by the latter to the former of a diamond ring, Those negotiations resulted, in ah arrangement by which the ring was to be delivered to the defendant: He paid five dollars in money and indoi-sed and. delivered to Behrens a check of a third party for the' sum of twenty-five dollars. At the same time two papez-s were signed by the defendant, in one. of which it is provided that “ The undez’-mentioned goods are com
The transaction took place on the 5th of January, 1906. On January sixteenth, Behrens, with his son, called on the defendant at his place of business and then said to him : “ The Court requires me to make a personal demand upon yon in the presence of a witness, and I now demand the return of this diamond ring,” holding the memorandum in his hand at the time, and the defendant said: “ All right, I accept your demand'.” Behrens testified that that was all that was said. “ He did not give me my ring.” In the meantime, and after the five dollars was paid and the twenty-five-dollar check given, the defendant claims that he discovered that the diamond in the ring was not of the quality represented by Behrens when he sold it, and that thereupon he, the defendant, stopped the payment of the check. When the return of the ring was demanded by Behrens the defendant said: “ All right, I accept your demand.” He did not refuse, therefore, to give up .the ring. He swore that he stated that he would give it up upon the five dollars and the twenty-five-dollar check being returned. That is denied, it is true, by Behrens and his son, but criminal intent cannot necessarily be
I think the judgment should be reversed and a new trial ordered.
Houghton, J., concurred.
Judgment affirmed. Order filed.