20 N.Y.S. 777 | N.Y. Sup. Ct. | 1892
This appeal is taken upon a pure question of law, as to whether the crime charged in the indictment was the crime proven upon the trial. The indictment charged that the defendant, “with force and arms, feloniously did steal, take, and carry away the money and property of Joseph Weiss. ” It is conceded that the following facts, which are concisely stated in the bill of exceptions, were established by the people upon the trial: That one Joseph Weiss published on or about November 11, 1891, an advertisement in the city of New York, in which the said Joseph Weiss applied for a position as clerk or collector, and offered to give security for the faithful performance of his duty. That thereupon, in the city of New York, on or about the said 11th of November, 1891, the defendant called on said Joseph Weiss, and represented that he was engaged in a legitimate business, in which he needed
Between the indictment and proof it is insisted by the appellant that there was a fatal variance, in that the act alleged is a forcible taking of complainant’s money, which it is claimed was not proven, while what was proved was the fraudulently inducing of Weiss to deliver the money to defendant, defendant’s duty to repay it on termination of the contract, and his neglect to comply with this duty, which it is claimed were not alleged. It will thus be seen that the appellant seeks to brings this case within the principle of People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325. We think, however, that an examination of what was decided in that case will show the 'distinction which the appellant seemingly overlooks. That case is authority for the proposition that, under the provisions of the Code of Criminal Procedure, prescribing the form of the indictment, it must charge both the crime and the act constituting it, and that the omission of either is fatal. That case, therefore, held, where an indictment for grand larceny charged the act constituting the crime thus: that defendant “unlawfully and feloniously did steal, take, and carry away,” the property described, that it could not be.sustained by proof that the defendant obtained possession of the property from