People v. Huggins, 97 N.Y.S. 187

People v. Huggins

97 N.Y.S. 187 | N.Y. App. Div. | 1906

Kellogg, J.:

The appellant contends that there is no such crime as obtaining money by fraudulent draft or by false representations; that even if there is such á crime it is not one of the. offenses of which, by section 56 of the Code of Criminal Procedure, a Court of Special Sessions has jurisdiction, arid that,, therefore, the conviction is void, and cites People v. Jeffery (38 N. Y. St. Repr. 313). The provisions *615of the Penal Code are not quite clear upon this subject, but when carefully considered, in view of the provisions of section 684 of the Code of Criminal Procedure, which provides, “Neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to Ms prejudice in respect to a substantial right,” and section 11 of the Penal Code, which provides, “ The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to, the fair import of their terms, to promote justice and effect the objects of the law,” it will be seen that the conviction is fairly within the provisions of the statute and should be sustained. Section 528 of the Penal Code-defines the crime of larceny, and in its terms is probably broad enough to cover the offense of the defendant. Section 529 of the Penal Code has the caption, “ Obtaining money or property by fraudulent draft,” and provides that a party so doing is “ guilty of stealing the same and punishable accordingly.” Section 528 provides that the person guilty of the acts stated therein steals (such property) and is guilty of larceny. It is not strictly accurate, therefore, to say that the Penal Code does not recognize the obtaining of money by a fraudulent draft as a crime. It does not say in so many words that such-act is larceny, but brands it as stealing. And when it says it shall be punished accordingly, it fairly refers back to the preceding section which declares that where a person obtains property by means therein mentioned, such person steals the property and is guilty of larceny. -It is not, therefore, a radical departure from the Penal Code to describe the acts of the defendant in this case as obtaining money by a fraudulent draft. Neither is it a departure, to prosecute him in the same manner that he would be prosecuted if the crime, strictly speaking, were larceny. The Jeffery case does not refer in any manner to section 529 of the Penal Code. That case arose upon a motion to dismiss _an indictment charging false representations, and it was held that the acts complained of were defined by section 528 of the Penal Code as larceny. Here, the act done by the defendant is made a crime under another section, the caption of which is “ Obtaining money or property by .fraudulent draft,” and when a deposition upon which a warrant is *616issued refers to that section, the defendant, has ample and precise , information as to just what the particular offense charged against him is, and has more accurate information than if- the crime was defined to-be larceny. ' The Jeffery case is, therefore, not an author- . ity for the defendant in this case. And, while it .might have been better practice, to declare the crime in this case as larceny, the defendant is not prejudiced by a reference to the section,, the describing the act as( obtaining money by fraudulent draft and a prosecution of the charge as larceny. It is punishable-in the same manner as larceny, and when the crime of petit larceny is made punishable by a Court of Special Sessions, that court clearly has cognizance of the offense here charged. Where the indictment charged the offense of selling liquor without a license, instead of selling withgut having paid the tax and having the certificate therefor, the conviction was sustained by this court, (People v. Seeley, 105 App. Div. 149 ; 93 N. Y. Supp. 982.) After the defendant has appeared, plead not guilty, had a trial before a jury and been convicted, it is too late for him to raise a formal objection to the complaint or the warrant. (People v. Shaver, 37 App. Div. 21.) There never was in this case any intent to give the defendant credit for- the twenty-five dollars. ,fle leddhe complainant to believe that he had the. check with him-ready to hand over, and the fact that as soón as lie received the. money or check from the complainant he left, saying he would return at once and hand over the check, and then absented himself for several days; does not amount to an extension of credit, and when he later handed over- tlie check it had the same force and effect as though it had been handed over .at the time he agreed to and the complainant supposed he was to hand it Over. The whole transaction was one act, and the whole act constituted the crime charged.

A careful examination of the rulings complained of by the defendant shows that no error was committed to his prejudice which calls for a reversal of the conviction. The crime was sufficiently charged and sufficiently proven, and the description of the crime, under, the eir-' cumstances shown, is sufficient to sustain the judgment. The judgment of the County Court, is, therefore^' affirmed.

All concurred.

Judgment affirmed.