28 A.D. 304 | N.Y. App. Div. | 1898
The appellant was indicted under subdivision 2 of section 528 of the Penal Code as being in possession, custody and control as bailee and trustee of certain goods, chattels and personal property of one Michael H. Hemmen dinger, the true owner thereof, to wit, two diamond earrings of the value of ninety-two dollars and fifty cents each, and having, on the 27th day of December, 1895, feloniously appropriated the said goods to his own use, with intent to deprive and defraud said Plemmendinger of the same. Upon the trial it appeared that Hemmendingér, being the owner of the property, called on the defendant, in answer to a note written by the defendant, and then delivered to the defendant two diamond earrings upon the statement of the defendant that he had a customer for the earrings named Hewman. The defendant signed a memorandum to the effect that if the earrings were not sold he (the defendant) would return them.' There was testimony tending to show that on the same day the earrings were.pawned with a pawnbroker for $125; that subsequently, in the month of January, the defendant gave to a person named Kahn the pawn ticket, saying: “ Here is a ticket for a pair of earrings; 1 pawned them at Simpson’s alongside the bridge; pawned at $125 ; ” that subsequently the owner of the diamonds called at the pawnshop, saw the earrings called for by the ticket and identified them as the diamond earrings that he had delivered to the defendant under this memorandum agreement before mentioned.
Upon this evidence the court submitted to the jury the question whether upon these facts this transaction was a sale or bail-ment. “Were these diamonds sold to this defendant or were they merely intrusted to this defendant for a specific purpose ? On that question of fact'you will determine the question of the guilt or
Subdivision 2 of section 528 of the Penal Oode provides that a person who, with the intent to deprive or defraud the true owner . Of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either as bailee, servant, attorney, agent, clerk, trustee, or officer of any per-' son, association' or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hol'd or take such possession, custody or control, any money, property, evidence of debt or ,contract, article of value of any nature, or thing in action or possession; appropriates the same to . his own use, or that, of any other person other than the true owner or person .entitled to the benefit 'thereof, is guilty of larceny. Here it appears that the-■defendant obtained the possession of this property from its true Owner,, under a statement that, he had a customer to -whom he could sell the- earrings, on the 27th day of December, 1895, and upon an agreement that if he did no.t sell them he would return them to the owner: It also appears from the evidence that upon the same day lie' received them, instead of selling them or attempting to sell them, he pawned them with a pawnbroker, and received from him the sum of $125. This evidence was sufficient to sustain a finding of the jury that the defendant was guilty, under this-section of the Penal
The defendant calls our attention to several rulings upon the admission and rejection of evidence. They have been examined, but we think' that none of them requires a reversal of the judgment. The witnesses were allowed to testify as to all the facts, and the questions calling merely for the conclusion of the witnesses from those facts were properly sustained. /.
The judgment is, therefore, affirmed.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ.,. concurred.
Judgment affirmed.