25 N.Y.S. 943 | N.Y. Sup. Ct. | 1893
The defendant was convicted of larceny under section 528 of the Penal Code, which 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, * * * having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer or as a person authorized by agreement or by competent authority to hold 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: steals such property and is guilty of larceny.”
The evidence presented by the people tended to establish that the defendant, while an employe of the complainant, acting under her authorization, and with her money, purchased diamond earrings and a diamond crescent pin, which she delivered to complainant in 1885 or 1886, who took and retained them continuously in her possession until February 14, 1888. On that day complainant fell on the ice, breaking her thigh. Defendant assisted in undressing her, and took the diamonds from her person, and carried them away. Subsequently complainant spoke to the defendant about them, who said she had them, and had taken them for safe-keeping, in which arrangement the complainant at the time, acquiesced. Thereafter defendant had made a pair of imitation diamond earrings, strongly resembling the genuine ones; and when complainant demanded the return of the jewels defendant sent to her the imitation earrings, promising to return the diamond pin later. This she did not do, but retained it and the genuine diamond earrings in her possession. Defendant’s contention was that she was not an employe of the complainant when the diamonds were purchased* but her partner in the conduct of a real-estate and insurance business, and also in keeping a boarding house, which relation she says existed between them from about December, 1884, until October, 1888; that the diamonds were paid for partly with the partnership funds, partly with her own money, and partly with moneys'of complainant; that they were purchased in defendant’s name, the receipts being made out to, and the negotiations as well as the payments solely made by, her. The issue most strongly contested during the three-days trial was whether there was a partnership from which was derived in part the money which paid for the diamonds. During the time which elapsed between the alleged theft of the diamonds and the trial of the defendant, now the subject of review, a civil
Respondent urges the charge of the court prevented it from doing the defendant harm, but we do not so read it. There was but one way open to the court for the correction of the error at that stage of the trial, and that was by an instruction to the jury that they wholly disregard the decision in the civil action. This it did not do. On the contrary, the effect of the charge was to permit, if not require, them to regard it. The court said:
“There was a previous claim asserted on the part of this defendant that she was the partner of this complainant. The result of that action was that the defendant was beaten therein, but that does not at all preclude you from*946 passing upon the question as to whether or not a partnership existed. You are not, in other words, precluded here by that adjudication.”
But the assumption so far indulged in, that the purpose of the defendant’s counsel was" to prove an assertion of the claim of partnership in October, 1888, is not, we think, justified by the record. We quote the questions and answers immediately preceding the proof offered by the people, to show how the suit terminated:
“Q. Now, let us get the dates of these suits she brought. Mrs. Leland brought a suit for a dissolution of the partnership when,—in what year? A. 1888. Q. What month? A. I think it was October. It was not tried, but I think it was October the action was commenced. Q. You have not any doubt about that, have you, that it was in October, 1888? The papers show it? A. Very little. I think it was October, but I did not look over it. Q. To the best of your recollection she brought a suit for a dissolution of the copartnership in October, 1888? A. Yes, sir. Q. You say the detention of this property, or larceny of this property,—I use the word of the indictment,—took place on the 14th of February, 1888, and you commenced a suit to restrain her from using your name in business, when? A. I cannot tell exactly. Q. Wasn’t it in the month of December, 1888? A. Probably. Q. And when did you have her arrested for this larceny? A. In February, I think. Q. February of what year? A. 1888. No, wait a moment, in March, I think, 1889, a year after. Q. You had her arrested for this larceny a year after? A. Yes, sir.”
The purpose of the questions appears to have been to get before the jury the fact that it was long after the defendant refused to give up the diamonds—which was September 22, 1888, some months after defendant had in the immediate neighborhood commenced the same business as that conducted by the complainant, and still longer after defendant commenced a suit against complainant—that she first took the necessary steps towards bringing about a criminal prosecution of the defendant; and it was expected, doubtless, that the jury might infer that this prosecution was instituted either for the purpose of revenge, or to bring about a. favorable settlement of the other controversies. But, had the evidence been offered for the purpose of showing that defendant, in October, 1888, asserted claim of partnership, it would not have justified, as we have already observed, the introduction in evidence of the decision subsequently made. The error is of such a substantial character that it calls for a reversal of the judgment and the ordering a new trial. All concur.