104 N.Y.S. 805 | N.Y. App. Div. | 1907
The defendant was indicted and convicted of the crime of grand larceny in the first degree for obtaining by false pretenses the sum.-of ' $1,000 from Bosa Kaiser, alady’s maid and seamstress. The defendant first met the complaining witness near the flower stand at the Grand.. Central Depot on April 20,1906, through an advertisement inserted by him in the New York Herald signed' “Bachelor,” and which, according to his testimony, read: “ Good woman wanted. Practical housekeeper for hotel purposes. Possibility, of Matrimony.” The witness answered this advertisement by letter, giving her name-and address, and stating: “ If gentleman would correspond with reference to the letters, I would like to get particulars,” and in reply received from the- defendant a letter signed “ E. Paul,” upon paper bearing the heading “ Uncle Sam Hotel, E. Paul, Prop. Bates $2 per day, special by the week, Millville, Pa.,” arranging for an interview at the°Grand Central Depot.-
The defendant met her, stated to her that lie was Ernest Paul (although his real name was Sattlekau),' asked whether she was Miss
“My-.Dear Rosa.-^-! .have been hustling-things'here toffiay in great shape.. Saw the Bank Cashier and as a personal favor he will increase the loan to 3,000 — instead of 2,000 —I can have the loan for years as long as I pay the interest. Then I called Morgan, the man who wants the Uncle Sam- Hotel and told him I was ready to do business. ■ He promptly got out- a Bank Deposit Certificate, for 4,000;—but the other 2,000-—he cannot pay-till the 15th of May. He has the money out on mortgage. From ’ the Banker I learned • that-the party who owes Morgan the money has more than 2,000 in bank and that the money will be promptly paid On the lotl-n Of course until Morgan pays the 2,000, I do not turn the place ovér to him, so that I will- get another 15 days out of the place here. Business is good and as I am not buying any stock now I can figure on some 300 to go. -to me in these fifteen days. You will see now.that I have ■all the 18,000 I need for the New York business. .
*45 My Bank Balance is some...........'.................. 8,700
Until the 15th I will take in----■........................ 300
Total bank balance.,...-...........'.................. 9,000'
Received from Morgan on account of the sale of the hotel.. - 4,000
' • 13,000
Loan from the Bank.......'............................ 3,000
16,000
' To be paid by. Morgan on the 15th of May.......----■.. .... 2,000
18,000' I__-
“If I could wait until the 15th now to buy the New York place I would be all. right. But the man told me Saturday that he could not hold the place for me after Monday noon,.as there are two other parties after it. ■ So I will have to find 2,000 on Monday morning. 1,000 I can get from the whiskey firm I told you about and. the Other 1,000 I want you to furnish, if you will. I will pay it back on the 15th when I get Morgan’s 2,000, and for the two weeks I will pay-you 6% interest, same as I pay my bank for the 3,000. I’ will give you a judgment note for the 1,000 and that is the only judgment nóte 1 have to give, all the 18,000 I own will stand as a security for your 1,000. You are absolutely safe in the matter, Rosa, as a mere business transaction even if you do not consider the fact that yóu áre helping the man who is going'to be your husband in a month, and that by helping him, of course you are helping yourself. I expect to reach the Ashland House, Fourth Avenue near Twenty-third street, on Monday morning about ten o’clock, and would like, you to meet me there and go to the bank with me and get the 1,000.. Tell your lady you must gét oif for an'hour to attend some important business. If she kicks tell her to take the job-and you'take a rest for a month until we get married. I am giving this letter to a man who is going to New York on the next train and who will mail-it On his arrival there, so'it will reach you Monday first mail. With kindest regards, ...
“ Yours sincerely,
“ERHST.”
“ Millville, Pa.,. May 1, 1906.
“MyDeae Rosa.— Got telegram about fire just after-you. left. .Stopped the deal in New York because if damage is heavy it will cripple me. financially ás I will have to pay. back the 4,000 -and won’t have any place to sell. Will write you in a day or so how bad the fire was. Do not worry. You will not lose anything only you may have to wait for me a little.
“ Yours as ever, -
“ ERHST.” .-
. These were the only .communications that she received from the defendant after-.'givingliim the $1,000 and she did -not.'see him again until after his-arrest.. The. defendant ivas arrested , on July thirteenth near the flower stand at the Grand .Central Station just as-he. ; was bowing to and addressing another woman who had some flqwers in her hand. In Ms first letter to the.complaining witness, arranging, for the -interview, he said: “F.or recognition,-please carry-a few violets in your hand.” He admitted that lie'was a married
The defendant was a witness in his own behalf and was examined. at‘ great length. He called no other witnesses to substantiate his ' story which in essential details corroborated that of the complaining witness, and where it contradicted her was self-contradictory and not credible. The jury properly found a verdict of guilty. The evidence was sufficient to justify the finding that the representation that defendant was the owner of the Uncle Sam Hotel was the representation of an existing fact, that said representation was false, that the complaining witness believed it to be true and -that in reliance upon its truth she gave the $1,000 to the defendant. There was no Uncle Sam Hotel at Millville, Penn.the defendant was not the proprietor of it; it was not burned on the day he got the $1,000. The deliberate intention to defraud, the falsity of the pretenses made and the reliance by the complaining witness thereon were fully established. If there be such a crime as obtaining money under false pretenses, this is that case. The defendant was a clever swindler of confiding women.
■ The appellant urges that the indictment is defective because it does not contain an allegation to the effect 'that-the complainant relied upon the representations alleged in the indictment to have been made by the defendant to her, and that such an allegation is absolutely essential to the validity of. an indictment for grand larceny by false pretenses, and cites in support thereof People v. Baker (96 N. Y. 340). That case did not deal with the question of the necessary allegations in an indictment at all. What was considered was the proof necessary to establish the crime.' Said Judge Earl: “In order to constitute the crime of obtaining property by false preténses it is not sufficient to prove the false pretenses and that property was obtained thereby, but it must be proved that the false pretenses were made with intent to cheat and defraud another.” Here that intent to cheat and defraud was abundantly proven. Again, “Another essential element of the crime which the People, in all cases of this kind, are bound "to establish, is that the money was paid or the property parted with in reliance upon and under the inducement of the false pretenses
'.The appellant- further urges .that the indictment is also defective in that it does not' allege that complainant believed to be true the 'representations alleged to have been made or that they were'the inducing cause of the complainant’s parting with her money, and -cites People v. Rothstein (180 N. Y. 148). That case also, deals not with the indictment but with the proof-. It held that the false representation then under-consideration was-not the assertion of'an- existing' intention but was a false representation as ■ to an alleged existing fact, and that this false representation was fully within the prin-' ciple of the cases cited. ■ Here there-was a false representation -of an alleged existing fact. ' ■ . -
In the indictment' at bar, after setting up the falserepreseniatións, the allegation proceeds: “ By color and by aid of which said false and fraudulent pretenses-and representations, the. said Ernest Paul did then and- there' feloniously and fraudulently obtain' from the possession of the said Bosa Kaiser tlie sum of-. One thousand dollars * -with intent to deprive and defraud'the said Bosa Kaiser of -the sainé and of the use and. benefit thereof, and to appropriate the same to his' own use1.” This is equivalent to alleging that Bosa Kaiser in parting with her property relied upon that pretense.-
. In People v. Rice (35 N. Y. St. Repr. 185; affd. on opinion below, 128 N. Y. 649)a similar indictment-was demurred to on the ground that it was insufficient.because it nowhere, contained any allegations, that the money.was paid in reliance upon, the false statements' of the defendant nor any allegation equivalent thereto. Presiding Justice Dwight, writing the opinion of the General Term, referring to the tw.o cases .cited, in support of the demurrer (People v. Dumar, 106 N. Y. 502, and Clark v. People, 2 Lans. 329), said :. “Heither of the.cases is authority for the ¡imposition that the allegation -of this indictment, viz.: tliat/the money was obtained ‘by color or aid •o,f’ the false and fraudulent representation, following as it does the language- of the -statute, is not equivalent to the allegation, in' that respect,' usually employed, viz.: that the end was accomplished 1 by means of’ the fraudulent representation. In the case of Dumar, the question was not as' to the sufficiency of the indictment, but- a question of variance between pleadings and proof. * " ? In
The appellant further urges that the indictment is also defective because the representations alleged therein are not all of existing facts, that some representations express the defendant’s desires, wishes or hopes, others refer to his means or. ability to pay debts, others as to promises or intentions to do things in the future, and cites People v. Blanchard (90 N. Y. 319), but in that case the court said: “ While the indictment must show what the false, pretenses were, and state them with reasonable certainty and precision, * * * it is not necessary that the prosecution should prove them all. * * .* A conviction was had in the present case founded upon a part only of the representations stated in the indictment which was permissible.” (See, also, Webster v. People, 92 N. Y. 422.)
In the case at bar the People proved that between April twentieth and May first, the date when-the defendant obtained the money from Rosa Kaiser, defendant made not only the representations as to existing facts mentioned in the indictment, but also other representations. Proof of these other representations was clearly competent as part of the res gestee. (People v. Colmey, 117 App. Div. 462; 102 N. Y. Supp. 714; affd., 188 N. Y. 573; People v. Rothstein, 180 id. 148.) “ It is not necessary to sustain a conviction that
We have carefully examined the record in this case and have-reached the conclusion that the defendant .was properly convicted upon the evidence of the crime whereof lie stood charged, and. that no errors were committed to Ms prejudice. The j ndgment, therefore* should be affirmed. ¡ '
■ - .Patterson, P. J., Ingraham, McLaughlin and Lambert, JJ., concurred. .
Judgment affirmed.