94 N.Y.S. 617 | N.Y. App. Div. | 1905
Upon this appeal the defendant brings up for review the question raised by the second ground of demurrer interposed by him, namely, whether more than one crime is charged in the indictment, within the meaning of sections 278 and 279 of the Code of Criminal Procedure. It is manifest that the indictment charges but a single offense, to wit, the larceny of $97,030.32, alleged to be the property of Francis J. Winn and divers other persons to the grand jury unknown. The first four counts charge in terms what would have been the offense of embezzlement at common law, which is now made larceny pursuant to the provisions of subdivision 2 of section 528 of the Penal Code. The fifth and sixth counts are the same,, save that the corporation was alleged to be the owner of the money. - Such fact, however, is immaterial, even though it be conceded that the ownership of the money was not vested in' the corporation. Section 281 of the Code of Criminal Procedure provides: “ When an offense involves the commission of, or an attempt to commit a, private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” It is evident
to stating the same offense in as many different ways as may be deemed expedient. It cannot mislead the accused or embarrass him in his defense or expose him. to accumulated punishments.” These words are applicable to this indictment, as a casual reading shows that but one transaction is embraced within all of the counts, and charge larceny in various forms by different means and from different persons; but the whole when combined shows that but a single offense is charged or attempted to be charged. The eighth count charges a degree of the same offense, and is, therefore, properly united with the other counts. (People v. Rose, 39 N. Y. St. Repr. 291.) The demurrer to the indictment was, therefore, properly overruled.
The refusal of the court to compel the district attorney to elect at the opening of the trial upon which count of the indictment he would proceed was clearly proper, as was also the ruling at the close of the People’s case. When the first motion was made it could not be known what the proof would show with respect to the manner and method in which the offense was committed; and the
As all the. counts of the indictment except the first f.our were withdrawn from the consideration of the jury, it is not needful that we further refer to them. Their consideration was only necessary in disposition of the demurrer to the indictment. In these four counts, although different persons as bailees of the money, the subject of the larceny, are specified, yet the averments in this form were made to meet the varying phases of the proof as it might be developed upon the trial, and as such, as we have seen, were authorized. These counts of the indictment charged the different persons named therein as principals in the offense therein charged. (Penal Code, § 29; People v. Du, Veau, 105 App. Div. 381.)
This brings us to a consideration of the sufficiency of the evidence to establish the offense charged in the first four counts of the indictment. It appears that about the close of September, 1896, the defendant Kellogg was the manager of a business operated under the name of E. S. Dean & Co., which he claimed was owned by his wife. This business consisted in procuring investments in “ discretionary pools ” for dealing in the purchase and sale of stocks, and was conducted by means of advertisements circulated throughout the country, in which it was advertised that profits of from 300 to 400 per cent would be secured by those who invested in the business. By these means E. S. Dean & Co. had received a large sum of money, some of which the defendant had appropriated to his own use and some had been used for the payment of “ dividends ” claimed to have been earned through investments. In that month the defendant procured Keller and Weiman to come into the business under an agreement that Kellogg should have the first $10,000
The last of the pools or combinations to which the public was asked to contribute was called “ Special Wheat Combination No. 2.” Invitations for this investment were sent out Mai'ch 18,1897. The circular by which the subscriptions were obtained was formulated by the defendant, and as a result of this circular there came into the company within a few days $150,000. This circular is not' printed in the record and appears to have been lost. The proposal was to form a pool to purchase wheat in the market, subsequently sell the same and divide the profits among those who contributed to the pool; most of the money which was received was deposited by
The great bulk of the evidence as to the purpose of the business and the method of its conduct is found in the testimony of Keller, one of the persons charged in the indictment as having the custody of the money, who was associated in business with the defendant. His testimony, however, was abundantly corroborated both by the books of the corporation and by the testimony of other witnesses., The defendant, while not an officer of the corporation, was shown to have been an active participant in the conduct of its business, and was the inspiring genius of all the matter contained in the circulars. He shared in the money which was received, including that of the 'last pool, and was quite indignant over the payment of the last dividends and the omission to take other receipts which came by mail and which were found in the safe when the sheriff took possession of the concern.
This summary of the evidence is sufficient for the disposition of this appeal. The details are spread out in the record, and abundantly support this outline of the general scheme. It is claimed, however, that the evidence only establishes a conspiracy and combination to procure, by device and trick, the money paid in to the
“I herewith enclose (so many) dollars to be credited to my account to be invested in Combination Number &emdash; to be operated for (a certain period of days) in wheat (or sugar or whatever the stock or commodity might have been). My liability is strictly limited, while my limits on profits is
By the terms of this contract it is made to appear that the money contributed by the investor was for a special purpose as therein specified, and the corporation or individuals took this money for the particular purpose. Assuming it to have been a perfectly legitimate transaction, it is manifest that the corporation and the individuals would have taken such money and held the same for investment in the particular enterprise. No authority was ferred upon the corporation or the individuals to use it for any I other purpose; and if used in any other manner than as an ment in the particular scheme, it would be a diversion and propriation of the moneys. The contribution in this form did not I pass title to the moneys; it remained in the contributor and did not [pass to the corporation or the individuals. They held the money in la fiduciary capacity, to be used for a special purpose for the benefit I of the contributor, and for no other. Such condition constituted ■the corporation or the persons who received the money bailees of the ■same under a special contract to be used for the particular purpose. 1(3 Am. & Eng. Ency. of Law [2d ed.], 733 et seq.) This doctrine is lelearly established by the case of People v. Miller (169 N. Y. 339). ■That case disclosed a scheme quite similar to the present. The
It is manifest, also, that the facts in this case would have supporte a conviction under a common-law count of larceny. The Mille case recognized that facts may exist which would support a convh tion under either count. Upon this subject' it was said : “ Mori over, the same act may sometimes amount to larceny at commoi law and embezzlement under the statute, and, when it does, th offender may be prosecuted upon either charge, at the option of th People * * The arrangement under which the mone was contributed to this pool made the defendant and his associate custodians of the money for the particular.purpose. They occupie
It is further insisted that evidence was given in the case for the purpose of establishing the offense as charged in the other counts in the indictment, especially the eighth count, which was improjier in establishment of the offense charged in the first four counts, and that as .the last four were withdrawn from the consideration of the jury, and such testimony was permitted to remain in the case, it was essentially prejudicial to the defendant, and the judgment should be reversed for that reason. If the claim were true the result might follow. The learned counsel for the defendant has called to our attention a particular specimen of such evidence and ruling, and does not claim that any others differ therefrom. Upon such subject the prosecution asked: “ Q. When was it that the first payment from the business of the corporation was made?” Then followed a colloquy between the court and counsel for the prosecution, in which the former inquired how that matter became material upon the counts charging misappropriation. The prosecution replied: “It is not. It is material upon the count charging conspiracy, and I suppose that under the decision in the People against MeKane in the 147th New York
This discussion covers all of the grounds upon which the appellant relied to secure a reversal of this conviction. We are of opinion that such grounds are all unfounded, and that the evidence abundantly justified the conviction upon the counts under which the court finally submitted the case to the jury. The other counts of the indictment might well have been permitted to remain, as a careful examination of this testimony satisfies us of the guilt of the defendant, and also that the several counts charging the offense would have justified the jury in convicting the defendant under any one of them had they all been permitted to remain. Their withdrawal,
Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment affirmed.
Sic.
People v. McKane, 143 N. Y. 455.— [Rep.