71 N.Y.S. 35 | N.Y. App. Div. | 1901
Defendant was indicted jointly with Alexander Muller and Herman Cohen, but he was tried separately. The sufficiency of the indictment as to Muller and Cohen is not questioned by appellant. The indictment charges Muller and Cohen, in substance, with having obtained from one Engisch, the complaining witness, a deed containing a covenant of warranty of property situated at Ho. 1014 Avenue A, in the city of Hew York, being a five-story apartment house, the lower floor of which was fitted up and used as a saloon, together with the saloon fixtures, liquor tax certificate, stock, furniture and appurtenances to the property, on the strength of certain false and fraudulent representations to the effect that Muller was a man of wealth and the owner of certain lots on Staten Island and
The first question raised by the appellant relates to the sufficiency of the indictment as against him. At the commencement of the trial the attention of the court was drawn by defendant’s counsel to the form of the indictment, and the claim was made that defendant was only called upon to answer for having aided and abetted, and that evidence as to conversations between the other defendants and Engisch was not admissible against appellant. At the close of the People’s case defendant’s counsel moved for a direction of a verdict of acquittal, stating that there was considerable variance between the proof and the indictment, but no ruling appears in the record and no exception is shown to have been taken. Before sentence a motion was made for a new trial and in arrest of judgment, but no grounds are stated in the record.
It would appear, therefore, that no objection to the sufficiency of the indictment was made upon the trial. We think the indictment was sufficient. The last clause quoted expressly charges the three defendants with the commission of the crime in the manner and by the means previously set forth in the indictment. This indictment is substantially in the form in use at common law against principals and accessories before the fact. Under the common-law practice it was not necessary that an indictment charging one with being an accessory before the fact should specify the means by which he aided and abetted in the commission of the crime. (1 Chitty Crim. Law [5th Am. ed.], *272; Bish. Directions & Forms, §§ 113, 114, 116.)
In People v. Bliven (supra) the court held, pursuant to the purpose of the new procedure, that an indictment iii form as against a principal was sufficient to sustain á conviction for aiding and abetting in the commission of .the crime and expressly repudiates the theory that the accused was not fairly apprised by the indictment of the charge to be presented against him. This case reviews the authorities upon the subject, both in this and other jurisdictions, and the necessary deduction therefrom is, I think, that if the facts constituting the crime are alleged, it is not necessary to allege the acts and things which it will be .claimed constitute the aiding and abetting.
The crime of grand larceny in the first degree is defined in sections 528 and 580 of the Penal Code. Intent to wrongfully deprive or defraud the true owner of his property is an essential element of the crime. The People gave evidence tending to show that Seldner represented to Engisch in the. presence of Muller and Cohen that he had made a search of the title to the Staten Island lots and found good title thereto in Muller; that he exhibited to him an abstract of the same and also a pretended satisfaction piece of a mortgage thereon, and that he urged Engisch to act upon his representations with reference to the condition of the title without employing a lawyer. Muller was not in possession and he did not have a good record title. The abstract referred to was made by the county clerk of Richmond' county, and it showed an unbroken chain of title in Muller and his grantors running back to letters patent by the Captain-General and Governor-in-Chief of Hew York and Hew Jersey issued to Lancaster Symes in 1708. In truth, however, Muller had no title. The original grant in his chain of title did not describe the lands conveyed. It merely granted in general terms vacant lands and meadows on Staten Island; but the lands in question had been previously specifically granted by the Lieutenant-Governor and Vice-Admiral of the Duke of York to John Palmer. This was part of the tract known as tthe Dongan grant. Defendant took the stand in his own behalf and testified that his only connection with the transaction was the examination of this search and a- representation that the search appeared to give Muller a good title; that he drew for Cohen and Müller the formal parts of the satisfaction piece referred to, leaving blanks for the date, liber and page of record, but that he had no connection with its execution; that he did not represent to Engisch that he had made a personal examination of the title 'or do or say anything to induce Engisch to rely upon his representations with reference to the condition of the title. The defendant
Other serious reversible errors were committed in the exclusion of evidence offered by defendant to show previous good character and reputation for' honesty and integrity. Senator Cantor was called and after testifying that he had known defendant since 1881 or 1882, that he and defendant were law partners for five or six years, that he saw defendant nearly every day for a long time and knew all of defendant’s family, and knew people who were acquainted with him and who lived' in his vicinity and had heard him spoken of in the neighborhood where he resided, was asked, “ Could you tell from the conversations you have had what his reputation is as to honesty and integrity ? ” The record shows that this was objected to generally j sustained, and an exception taken. The witness was then asked: “ From your acquaintance with people, who know him arid who live in his vicinity, can you tell what his reputation is as to honesty and integrity ? ” To this question a general -objection was also interposed, sustained, and an exception taken by defendant’s counsel. Another witness, Dornbusch, a contractor who'knew defendant well, and was acquainted with some people who knew him and had spoken to. people concerning him, and had been spoken to by people concerning defendant, was asked: “ In the vicinity where he lives and associates, what is his character among them?” This was objected to, objection sustained, and defendant excepted. Witness then testified that he had seen, defendant nearly every day for the last two years and was asked; “ How is he spoken of by those people who know him ? ” This was also excluded under a similar objection and defendant excepted. Witness was then asked : “ Can you tell what his character is as to truth, veracity and integrity ? ” This was similarly excluded and defendant excepted. Another witness, Elliot, who had known defendant for fifteen years, and had been acquainted with a great many people who knew him and had conversed with them concern
There was a sharp question of fact presented by the evidence in this case, depending upon the credibility of the People’s Avitnesses or of the defendant. In these circumstances, evidence of previous good character might have resulted in a different verdict. It is now well settled that such evidence may, in and of itself, raise a reasonable doubt which would warrant the jury in acquitting a defendant no matter how strong the evidence against him may be. (People v. Goldberg, 20 App. Div. 444; People v. Sweeney, 133 N. Y. 609 ; Stover v. People, 56 id. 315 ; People v. Friedland, 2 App. Div. 332; Remsen v. People, 43 N. Y. 6 ; People v. Wileman, 44 Hun, 187.)
The rule that evidence to impeach a party or witness may be excluded unless it be shown that the impeaching witness knows the general reputation of the party or witness sought to be impeached, from the speech of' people who are acquainted with him in the community where he resides or transacts business (Carlson v. Winterson, 147 N. Y. 652; Healey v. Terry, 16 Daly, 117) is not applied to witnesses called to establish or sustain character. (National Bank of Troy v. Scriven, 63 Hun, 375 ; Adams v. Greenwich Ins. Co., 70 N. Y. 166 ; People v. Davis, 21 Wend. 309 ; Conkey v. People, 5 Park. Cr. Rep. 31; Lenox v. Fuller, 39 Mich. 268; State v. Sterrett, 68 Iowa, 76; State v. Grate, 68 Mo. 22; State v. Lee, 22 Minn. 407; Cole v. State, 59 Ark. 50; Lemons v. State, 4 W. Va. 755 ; Gandolfo v. State, 11 Ohio St. 114.) Within these authorities this evidence was competent and should have been received. The charge involved defendant’s honesty; it was pertinent to the issue, therefore, for defendant to show good reputation for honesty and integrity. (Whart. Crim. Ev. §§ 60, 487; Abb. Tr. Br. Crim. Causes, § 461; Underh. Crim. Ev. § 77; State v. Bloom, 68 Ind. 54.)
The attitude of the court throughout the trial toward the defendant is complained of, and other exceptions relating to remarks of the assistant district attorney, relating to the exclusion of evidence,
. The conviction and judgment should be reversed and a mew trial granted.
Patterson and Hatch, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., concurred in result.
Judgment reversed and new trial granted.