218 A.D. 254 | N.Y. App. Div. | 1926
The defendant has been convicted of violating section 932 of the Penal Law which is as follows: “A person who, with intent to cheat or defraud another, designedly, by color or aid of a false token or writing, or other false pretense, obtains the signature of any person to a written instrument, is punishable by imprisonment in a State prison for not more than three years, or in a county jail for not more than one year, or by a fine of not more than three times the value of the money or property affected or obtained thereby, or by both such fine and imprisonment.” The indictment charges that the defendant on or about August 29, 1923, with intent to cheat and defraud William B. Bell did obtain his signature to a deed whereby said Bell conveyed to the defendant and his wife as tenants by the entirety thirty-eight acres of land in the town of Windsor, Broome county, N. Y.; that the defendant represented to the said Bell that he was the owner of a certain second mortgage on property in the town of Kirkwood, Broome county, N. Y., upon which there was unpaid the sum of $1,800, and that the defendant assigned said mortgage to said Bell who believing the representations made by the defendant and being deceived thereby was induced by said false representations to accept the said mortgage and that relying on said false representations the said Bell on the said 29th day of August, 1923, executed the said deed and delivered the same to the defendant; that the said representations as to the said second mortgage were untrue and were known by the defendant to be untrue and that the said mortgage was not a second mortgage but a third mortgage hen
It appeared at the trial that in addition to the said mortgage the defendant paid Bell $900 for the property received from him. The defendant admitted that he told Bell or the agent of the latter that the mortgage in question was a second mortgage; that it was subject to a first mortgage of $2,500 and was followed by a third mortgage of $3,500. On July 10, 1923, defendant was the owner of said last-mentioned mortgage of $3,500. The $1,800 mortgage at that time was a second hen and was owned by one Dennis. The defendant and Dennis exchanged mortgages, the latter paying the defendant $1,200 on the exchange. Assignments of the mortgages were executed by the parties respectively on the day last mentioned and at the same time what is called a subordination agreement was executed by both parties whereby it was agreed that the lien of the second mortgage of $1,800 should be subordinated or made subsequent to the lien of the $3,500 mortgage. The two assignments and said agreement were executed simultaneously and all were promptly and at the same time recorded in the office of the clerk of the county. It is the contention of the prosecution that the fact of this so-called subordination agreement was fraudulently concealed by the defendant from Bell and that the statement of the defendant that the $1,800 mortgage was a second lien was false and made by the defendant with the intent to cheat and defraud Bell by procuring from him the execution and delivery of the said deed. The defendant testified that he made no agreement with Dennis in respect to the priority of the mortgages; that he did not know the contents of the agreement he signed to that effect; that he could not read the same because of the absence of his glasses; that he had never previously' assigned a mortgage and that he understood and believed that the agreement he signed was of a formal nature relating merely to the exchange of mortgages and that he did not know of the nature of said agreement until some time in the year 1925 and that he believed when he made the representation that the $1,800 mortgage was a second mortgage that such was the fact. Neither Dennis nor the attorney who drew the assigmnents and the agreement and took the acknowledgment of Dennis and the defendant thereto testified that the defendant read the paper purporting to affect the priorities of the two mortgages. The jury by their verdict have determined the facts against the defendant. We are of the opinion that errors of a substantial nature were committed in the progress of the trial which seriously impair the validity of the verdict.
It was also error to exclude the testimony of the defendant as to his conversations with Dennis leading up to the execution of the so-called subordination instrument. ' Dennis himself was permitted to testify in behalf of the prosecution as to his conversations with the defendant on this point btit the testimony of the defendant was excluded. The error was partly but not entirely cured by the categorical answer of the defendant denying the testimony of Dennis that it was understood between them that the $1,800 mortgage was to be a third mortgage. There were three different conversations culminating in that subordination agreement and we think it was the right of the defendant to state the negotiations leading thereto as bearing oh the question whether he did or did not make such an agreement. The conversations may have thrown light on that question and had a material bearing thereon.
The court charged the jury as follows: “ I will state to you that the evidence in this case has established as a fact, and you may accept it as having been established and determined, that said mortgage [the $1,800 mortgage] at the times in question was a third mortgage upon said premises in Kirkwood and not a second
It is well settled that in a criminal case the burden is on the prosecution to show that errors are unprejudicial. (People v. Smith, 172 N. Y. 210, 243.) When the district attorney caused the exclusion of the evidence as above indicated he must have thought that its reception might be beneficial to the defendant. That possibility is no less apparent now than it was then. It has been said “ that a multiplication of errors even of a technical character may make them so numerous that when considered together they cannot be deemed harmless.” (People v. Harris, 209 N. Y. 70, 79.) The errors above pointed out we do not consider technical but substantial and because of them we are not satisfied that the defendant has been properly convicted.
The judgment of conviction should be reversed and a new trial granted.
All concur.
Judgment of conviction reversed and new trial granted.