16 N.Y.S. 881 | N.Y. Sup. Ct. | 1891
Lead Opinion
The defendant was indicted for what formerly would have been the crime of obtaining money by false pretenses, but which, under the Penal Code, is now larceny. The substance of the charge set forth in the indictment was that the defendant on July 19, 1887, stole from one Alice*G. Bostwick the sum of $5,500 by means of a false and fraudulent pretense and representation that he had in the month previous purchased for her 100 shares of stock of the Pullman Palace-Car Company, and had arranged that the same should be paid for by her in installments; that he had made various payments on account of said purchase, amounting to over $1,600, and that it was then necessary that she should make a further payment on account of such purchase; that she, believing such -false and fraudulent pretenses and represen
The first point raised by the learned counsel for the defendant is that the court erred in refusing to take the case from the jury. We do not think that this point is well taken. On the contrary, we think the case is one which it was the plain duty of the court to submit to the jury. Alice G. Lewis, (formerly Alice G. Bostwiek,) the wife of the defendant, and a number of other persons were called as witnesses, and testified on behalf of the people. The defendant himself did not go upon the witness stand, nor were any witnesses called in his behalf. The evidence given on behalf of the prosecution was substantially to the following effect: In May, 1887, Mrs. Bostwiek had some money which she wished to invest, and the defendant, with whom she hacl previous acquaintance, represented to her that Pullman Palace-Car stock would be a very fine investment, and told her she could buy it on installments. Mrs. Bostwiek consented that the defendant should buy 100 shares of that stock for her, and at different times gave him money to make payments on account of the purchase price. In the latter part of May, 1887, she gave him $150; on June 24th, $600; on June 24th, $700; on June 80th, $900; and on July 19th, $5,500. After she had given him some money, the defendant told her he would give her a statement that would show just how she stood. He also told her that the account for all the money she liad given him was standing on the books of said company, and also on his book. On June 27th he told her that he had bought said 100 shares of Pullman Palace-Car stock, and that the stock was on the books of the company, and also on the books in his office. Mrs. Bostwiek, after procuring a divorce from her former husband, was married to the defendant on December 27, 1887, and lived with him for about two years thereafter; and the expense of maintaining the household during that time appears to have been borne by her. While she was living with the defendant, he paid her $200 every three months, which he said was the interest upon said stock. In August, 1889, while the defendant and his wife ■were living at Orange, H. J., she, not having received such interest for some time, asked him for the same. The defendant thereupon gave his wife a letter to one Johnson, who was a friend of his, and who did business in Hew York city; and told his wife to come to Hew York, and deliver the letter to Johnson. This letter was put in evidence, and was in substance a letter introducing his wife to Johnson, stating that the defendant had been ill, and expressing the hope that Johnson would give his wife special assistance. Mrs. Lewis came to Hew York, and delivered the letter to Johnson, and had a conversation with him, which she afterwards repeated to her husband. The substance of such conversation was that Johnson told her he had nothing whatever to do with her affairs, and knew nothing about them. Mrs. Lewis then went to the office of the Pullman Car Company, and was referred to the office of the Farmers’ Loan & Trust Company, where the transfer books of said car company were kept, and she there discovered that there was not then, and never had been, any stock of the Pullman Car Company standing in her name upon the books. She then returned to Orange, and, in the presence of her daughter, had an interview with the defendant, in which she told him the result of her visit to Hew York. Mrs. Lewis was very much prostrated, and said to the defendant, “Why have you sent me on this false errand?” The
A statement prepared by the defendant himself, and given to Mrs. Lewis, was also put in evidence, which shows, as he told her, the property of hers which he had in his possession. This statement shows investments, or pretended investments, amounting to many thousands of dollars, besides the Pullman Palace-Car stock and the New York, West Shore & Chicago bonds above mentioned, but no evidence was introduced as to such other properties. As above stated, the defendant did not go upon the witness stand, and no witnesses were called in his behalf, and the evidence above detailed stood absolutely uncontradicted; and it also appeared that the defendant, while under arrest, attempted to escape by jumping from a railroad train which was in rapid motion. Under these circumstances, the claim of the learned counsel for the defendant that it was error for the court to submit the case to the jury is certainly rather startling, for no case was ever tried in a court of criminal jurisdiction which was more clearly one for the jury than this. It was doubtless necessary for the prosecution to prove beyond a reasonable doubt that the defendant had never purchased the Pullman Palace-Car stock. If he had in fact purchased it, and then sold it, and misappropriated the proceeds, he would not have been guilty as charged in the indictment. It was therefore necessary for the prosecution to prove a negative, and the only way in which this could be possibly done was by circumstantial evidence. The evidence was uncontradicted that the defendant had obtained the money upon the representation that he was going to buy such stock for her; that he afterwards told her that he had purchased it, and that it stood on the books of the company, and he pretended to pay her the dividends upon the stock;
The second point made by defendant’s counsel is that the court erred in allowing the wife’s testimony as to the defendant’s admissions to her. This point also is not well taken. Section 715 of the Penal Code is as follows: “The husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage. ” Section 831 of the Code of Civil Procedure contains, among other things, the following provisions: “A husband or wife shall not be compelled to disclose a confidential communication made by one to the other during the marriage.” Section 392 of the Code of Criminal Procedure is as follows: “The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code:” The answer to the point raised by counsel is that, in the first place, the admissions made by the defendant to his wife were not “confidential communications.” The wife had good reason to believe that her husband had stolen her money, and, in th'e presence of her daughter, she asked him for an explanation. There was nothing of a confidential character in his answers. He refused to explain, and merely declared that there never had been any stock standing in her name, and that the money was gone; and, after the disclosures contained in the letter of Patón & Co., he still refused to make any explanation, and by his cruel and brutal treatment drove his wife out of the house, which was maintained with her money. In the next place, even if such admissions were regarded as “confidential communications,” the above-cited provision of the Code of Civil Procedure has no application, because section 715 of the Penal Code does otherwise provide. That section makes a husband and wife competent witnesses against each other when either is on trial for a crime. It merely declares that neither can be compelled to disclose a confidential communication made by one to the other during their marriage. There can be no pretense that Mrs. Lewis was compelled to disclose the admissions or statements made to her by .her husband. On the other hand, she had every reason to voluntarily give the testimony which she did as to such statements and admissions, and it clearly appears from the record that her testimony was entirely voluntary.
The third point raised is that the letters of Patón & Co., heretofore referred to, were improperly admitted in evidence. We do not agree with counsel upon this point for several reasons. In the first place, the reading of the letters in evidence by the district attorney cannot have injured the defendant, because the substance of the letters had already been stated by Mrs. Lewis, while she was under cross-examination. Counsel for the defendant claims in his brief that such statement was not brought out by him, but was made in response to inquiries by the district attorney and the court. The
Counsel for the defendant argues that, when the contents of the letter were communicated to the defendant, he was not called upon to make any statement, but we cannot agree to this proposition. He had obtained $7,000 from his wife, with which to buy these bonds, telling her they were as good as gold. She presented a letter, in which it was stated in substance that the bonds had been worthless for many years, and demanded an explanation. Surely, if there ever was a case which called for an explanation, this was one. Suppose that the wife at this interview bad stated to the defendant that Patón & Co. had told her that the bonds were worthless, it would certainly have been competent in that case for the prosecution to prove that she made this statement to him, and to prove what he said in reply; or if he refused to give any explanation, or remained silent, to prove that fact. The rule applicable to such cases is laid down very clearly in Kelley v. People, 55 N. Y. 571: “Where an individual is charged with an offense, and declarations are made in his presence or hearing touching or affecting his guilt or innocence of an alleged crime, and he remains silent when .it would be proper for him to speak, it is the province of the jury to interpret such silence, and determine whether his silence was, under the circumstances, excused or explained. At most, silence under such circumstances is but an implied acquiescence in the truth of the statements made by others, and thus presumptive evidence of guilt; and in some cases it may be slight, except as confirmed and corroborated by other circumstances. But it is some evidence, and therefore, excepting those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation, or in a discussion between third persons not addressed to or intended to affect the accused, or induce any action in respect to him, so that for him to speak would be a manifest intrusion into a discourse to which he was not a party, the evidence is competent, and should be admitted.” And, as was said in Cohu v. Husson, 113 N. Y. 662, 21 N. E. Rep. 703: “Silence when one ought to speak is often as significant as an express admission.” The letters themselves prove nothing as to the truth of the statements therein contained, but the silence of the defendant, and his failure to make any explanation as to the matter, is presumptive evidence that the statements contained in the letters were true; and it was for the jury to determine what construction could be placed upon what was said and done by the defendant after the letters had been shown to him by his wife, and upon his failure to make any explanation. If the contents of those letters were true, he stood in the position of having deceived and defrauded his wife; and his refusal to make any explanation was some evidence of his guilt, and it was for the jury to say what weight should be attached to it in connection with the other evidence in the case. And if the evidence of what transpired at this interview, taken in connection with such other evidence, satisfied the jury that he had defrauded his wife in regard to the Hew York, West Shore & Chicago bonds, they had the right to take that fact into consideration in determining the intent with which he had acted in reference to the Pullman Palace-Car stock. , We think the defendant had a fair trial; that none of the exceptions were well taken; that there is nothing which occurred at the trial that calls for a reversal; and that the judgment should be affirmed.
Concurrence Opinion
(concurring.) The only doubt here is as to the letters of Patón & Co. But a careful examination of the record shows that the contents of these letters were elicited by the defendant on his counsel’s cross-examination of the prosecutrix. The redirect examination followed in its reg
Van Brunt, P. J., concurs.