People v. Herrick

13 Wend. 87 | N.Y. Sup. Ct. | 1834

By the Court,

Savage, Ch. J.

The point principally relied upon on the argument, was the variance between the indictment and the proof; in other words, that the offence was not proved as laid. The indictment charges that the representation was, that the defendant had $300 deposited with Squier, whereas the proof is, that the defendant said that he had $150 deposited. There is no doubt of the general correctness of the proposition that the facts must be proved substantially as laid. It must be remembered, however, that the object of all specifications in indictments is to apprise the defendant of what he is to meet upon the trial, and that certainty to a common intent is all that can reasonably be required. The complaint is, that N. N. Herrick was induced, by the false representation of the prisoner, to sign anote for $85; and it is alleged that that representation was, that he had a deposit in Squier’s hands to the amount of $300. The proof is, that he represented he had a deposit of $150. Now, so far as the merits are concerned, it maltes no difference whether Tie represented he had in Squier’s hands $30(1, or $150—so long as either sum was more than sufficient to meet the payment of the note of $85. Is it possible then that the defendant could be surprised or injured in any way by the allegation in the indictment ? particularly when, in negativing the pretences, the pleader says, “ whereas, in truth and in fact, the said John W. Squier did not then and there have in his hands the said sum of $300, of and belonging to the said E. S. Herrick, nor any other sum of money belonging to the said E. S. Herrick.” The representation was, that he had $150 in the hands of Squier; was not the defendant fairly notified by the indictment to meet the facts as they were proved? If so, there is no reason for a new trial.

2. I cannot perceive any impropriety in hearing from the witness the reasons why he did not rely on the responsibility of the prisoner ; they could have no influence, unless to test the truth of the witness. He had sworn that he relied not on the responsibility of the prisoner, but upon the representation that the money was in the hands of Squier, subject to the prisoner’s order when Squier should return to his residence. The important facts were, whether a false representation was made, and whether the witness relying upon that representation signed the note. If the signature to the note had been obtained by any other means than the false representation, then this offence was not committed. If the witness had relied, not upon the representation of the money in Squier’s hands, but upon any thing else, as upon the prisoner’s general responsibility, then the defendant was not guilty. The witness had sworn that he did not rely upon the prisoner’s responsibility; that proved that part of the case, and giving the reasons why he did not so rely was totally unnecessary, unless called for by the defendant, by way of impeaching the testimony of the witness; but I cannot see that the prisoner was prejudiced by it. These reasons went to confirm the previous statement of the witness, and were certainly hot improper, particularly as there was an attempt by the defendant to impeach this witness, People v. Vane, 12 Wendell, 78.

3. The court decided correctly in limiting the inquiry as to the defendant’s responsibility to the time of obtaining the signature ; he might have had abundant means shortly before and shortly after the time when he obtained the signature. The object of this evidence could be no other than to create a belief that the witness N. N. Herrick relied upon the prisoner’s general responsibility, and not upon die particular fund supposed to be in the hands of Squier. What the circumstances of E. S. Herrick were at any other time than when the representations were made and the signature obtained, were entirely immaterial to the point, and might mislead the jury.

4. The charge of the court was correct, so far as it operated against the defendant. It was true that the testimony off N. N. Herrick sustained the indictment. It was correct also to say that the proof of the false representation was sufficient evidence of a fraudulent intent; the latter was the natural and legal consequence of the former. The intent is inferred from the fact; and if it was possible that there could be a false representation with an innocent intent, the defendant should have shown it. In one particular the court erred, but the error was favorable to the prisoner. The court charged that if there was any other cause operating upon the mind of N. N. Herrick, the defendant should be acquitted. Such a doctrine has prevailed in some criminal courts—that the false pretence proved must have been the sole inducement for parting with property, or in this case for signing the note. That doctrine was fully discussed by Mr. Justice Nelson, in the recent case of The People v. Haynes, 11 Wendell, 557, and considered unsound ; it is enough if the false pretence had a controlling influence in procuring the signature, although minor considerations may have had some effect. The charge was correct as to the third count also, as it appeared that the money had actually been paid by N. N. Herrick. The People v. Stone, 9 Wendell, 182, settles that point.

5. Whether the second count is good or not is totally immaterial, so long as there is one good count in the indictment to which the testimony is applicable. But I see no defect in the second count; it contains the substance of the offence, and the proof sustains it.

The court are advised to proceed to judgment.