People v. Smith

| N.Y. Sup. Ct. | May 15, 1863

Lead Opinion

Clerks, J.

For the purpose of determining the question involved in this case, I will assume that Mrs. Stoesser was indebted to Smith in the amount which he obtained from her on the 28th of October, 1862. The question, then, is, if by means of false representations or pretenses, by which a creditor makes his debtor believe that the debtor shall receive a new and valuable consideration, and induces the debtor to part with money therefor—the creditor, at the time he takes the money, intending not to give the new consideration, and, accordingly, never giving the debtor the new consideration, but' applying the money, as he intended to apply it at the time he received it. to the payment of the old debt—is he guilty of the legal offense of obtaining property by false pretenses ?

The counsel for the accused refers to two cases which would seem to sustain the negative of this proposition: the one, Williams' Case (7 Carr. & Payne, 354); the other, The People v. Griffin (2 Barb. R., 431). The first of these cases was tried at the Brecon Assizes, before Mr. Justice Coleridge and a jury. The circumstances were these: A. owed B. a debt, of which B. could not get payment. C., a servant of B., went to A.’s wife and obtained two sacks of malt of her, saying that B. had bought them of A. C. knew this to be false, but took the malt to B., his master, to enable him to pay himself the debt. Mr. Justice Coleridge told the jury, if they were satisfied that C. did not intend to defraud A., but only to put it in his master’s power to compel him to pay a just debt, it would be-their duty to find him not guilty. It is not sufficient, he added, that the prisoner knowingly stated that which was false, and thereby obtained the malt; they must be satisfied that the prisoner, at the time, intended to defraud A. The jury rendered a verdict of not guilty. In the other case to which the counsel of the accused has referred, the defendant was convicted upon an indictment charging him with having written letters to one Heath, threatening to burn and destroy his property unless he would send the defendant the sum of sixteen dollars, claimed by defendant to be due to him from Heath. The court below thought that the fact of the indebtedness of Heath was entirely immaterial, and so charged the jury. The Supreme Court, at the Cayuga General Term, January, 1848, granted a new trial, holding that the charge was erroneous; Mr. Justice Welles, in delivering the opinion of a majority of the court, observing: “In order to constitute the offense created by statute, the letters must be sent with a view to extort or gain money or property belonging to another. The intent must be to extort or gain. Can it be truly said that a person extorts money which is justly due?”

Considering the sources frpm which these decisions have come, they are undoubtedly entitled to respectful consideration. But they appear to me so entirely at variance with the well-known policy of the law, that I cannot regard them as of controlling authority in this case. That policy is, not to givó any man the right of self-redress, except in the well-known instances of self-defense, recaption or reprisals, entry on lands and tenements, when another person has, without any right, taken possession thereof, and abatement of nuisances. In the two instances of self-redress which relate to the repossession of property, the law limits the right only to cases where it can be exercised without force or terror or any breach of the peace. Otherwise, this right would be inconsistent with the peace and good order of society, which it is one of the principal purposes of the law to encourage and support. If every man were allowed to redress himself by force and violence, society would fall back into that condition which characterized it before it emerged from the barbarism of the dark and middle ages, when every man and every family undertook to avenge themselves, and the land “ was filled with violence.” Instead of the peaceful administration of justice by impartial tribunals, feuds and factions* transmitted from generation to generation, would obstruct all industry, and render any progress in wealth, refinement or the arts of life impossible. In the same way, and for reasons equally important, the law discourages the employment of fraud or falsehood in the endeavor to obtain redress. Although there are some duties, such as truth, which are termed duties of imperfect obligation, which the law does not undertake to enforce, yet it will never encourage the violation of any of these duties by sanctioning their violation, even in the endeavor to accomplish a lawful end. This would be legalizing the profligate doctrine that the end sanctifies the means—a doctrine not only abhorrent to conscience and the Divine law, but at variance with the principles of municipal law, of which the object is not only to preserve society from open violence, but to discountenance everything that is-calculated to encourage artifice and dishonesty in the intercourse of men with each other. If it is wise to forbid men from using force to collect a debt, it is equally wise to forbid them from using fraud to collect it. If strife is not the immediate consequence of the latter, it will, if generally sanctioned, lead to it It will, at all events, inevitably breed imposture and falsehood, which are quite as pernicious to the best and highest interests of society as violence. Besides, is it to be taken for granted that debtors have no rights ? Is it enough for a man to say that another is his debtor ? The latter may, as, indeed, in the case before us, have a defense to the claim, the sufficiency of which can be properly determined only by the tribunals appointed by the law to ascertain the truth. It would be unjust, by sanctioning a trick, to deprive an alleged debtor of the attitude in which he stands, and allow his alleged creditor to recover his demand without requiring him to prove it where it is disputed, and giving the former an opportunity of substantiating his defense.

This is the result which such a practice would undoubtedly produce; and though.injured creditors may, by such means, occasionally obtain their rights, many debtors would be deprived of their rights. So that where it is said, in the cases above quoted, that “ the defendant’s object was not to cheat or defraud, but to1 get that which was honestly his due,” this is not the question, but the proper consideration is, is it safe to allow every man to be a judge in his own cause, and, in officiating in'that capacity, to allow him to resort to false pretenses to accomplish his purpose? If a person having, or pretending to have, a claim against another, is allowed to" do what in any other case would render him liable to punishment for obtaining goods under false pretenses, why should he not also be allowed to do what, if he had not such a claim, would render him liable to punishment for the crime of larceny ? Would the law, for instance, recognize his. right to take money furtively out of the desk of his alleged debtor, and apply it to the payment of his debt ? He has the opportunity, without force, of doing this, and in the language employed by the court, in The People v. Griffin, “ his object is not to cheat or defraud, but to get that which is honestly his due.” The intent would be precisely the same as in the case before us, and the only difference would be, that in the one case he obtained money by means which, the law, in ordinary cases, calls false pretenses, while in the case I have been supposing, he would obtain it by means which the law, in ordinary cases, calls larceny. But I think he would be convicted of larceny in this supposed case.

The case of The People v. Thomas (3 Hill R., 169), though going very far, does not sustain the principle asserted by the counsel for the accused. In that case there was a misrepresentation as to the loss or destruction of the note,. The note was due, and the maker was willing and ready to pay it. On paying his money he knew that it was to be appropriated to the payment of the note. He was not induced by the misrepresentation to give it for any other purpose, on the promise that he was to get another consideration for it. It did not appear from the indictment that Jones sustained any damage by the false representation. The case turned upon the sufficiency of the indictment. Whether the maker of the note would or would not be injured by any subsequent disposition of the note, was purely speculative.

I think the recorder fairly and clearly presented the true question to the jury, and properly refused to charge as the prisoner’s counsel requested.

The objections taken to the indictment and the rulings on the evidence are equally untenable.

The conviction should be affirmed, and the Sessions directed to proceed to judgment.

Justice Barnard concurred.

---

Dissenting Opinion

Sutherland, P. J. (dissenting).

The question in this case is not one of morals, but of crime. The prisoner was indicted in the Mew York General Sessions, for obtaining from one Eachael Stoesser the sum of $82.70 in money by false pretenses. The crime is statutory. The words of the statute are: “ Every person who, with intent to cheat or defraud another shall designedly,” &c."

Assuming that the pretenses or representations set forth in the indictment, were shown to have been designedly made, and to have been false,' the question presented by the exceptions to the recorder’s charge is, could the prisoner be legally and properly convicted, if the false representations were made and the money thereby obtained, with the intent to apply or credit the same on a just debt, then due and owing from Eachael Stoesser to the prisoner ? In other words, the question presented by the recorder’s charge, and the exceptions to it, is, could the prisoner be lawfully convicted if he used the false and fraudulent means charged in the indictment, for the purpose of obtaining the payment of a just debt, due and owing to him from Mrs. Stoesser ? If, when the money was obtained the prisoner intended to apply it on a just debt, due to him from her, can it be said that he intended to cheat or defraud her out of the money ? I think not. To complete the-statutory crime, the means, the pretenses or representations must not only be false and made designedly, but they must also be made with á particular intent, to wit, to cheat or defraud another.

In equity a debtor’s money belongs to his creditors. It is a maxim of equity that a debtor must be just even before he is generous.

If Mrs. Stoesser’s money went to pay a just debt of hers, it went where it ought td have gone. If the prisoner obtained the money by lying designedly by means of the false representations charged in the indictment, he was guilty of a moral delinquency, of fraud or deceit, if you choose to say so, shocking to the moral sense; but if he resorted to this foti.1 means merely for the purpose of procuring payment of an honest debt, I do not see how it can be said that he intended to defraud Mrs. Stoesser out of her money. If such was his intention, all you can say is, that by lying, without any personal violence or breach of the peace, he obtained what belonged to him. If such was his intention, he was not guilty of the crime defined by statute, although he may have perpetrated a gross fraud. If one citizen can, without going to law, procure from another citizen, what justly belongs to the first citizen, without any breach of the peace or injury to the public, that is, by any means not criminal, I do not see why he cannot do it without being guilty of any crime.

These are my views of the question irrespective of cases, but the case in 7 Carr. & Payne, referred to by Mr. Justice Clerke in his opinion in this case, appears to be in point, and to tend to the same conclusion; and I do not see why it should be disregarded.

If Mrs. Stoesser was indebted to the prisoner at the time he obtained the money, in' an amount larger than the sum obtained, it does not follow that. his intention, at the time he obtained the mphey, was to procure the payment, or part payment of that debt. His applying the money on the debt may have proceeded from an afterthought.

With the other questions in the case, I think the recorder should have submitted to the jury the questions as to the fact or existence of the indebtedness of Mrs. Stoesser to the prisoner, and as to the intention, and should have charged the jury, that if they found that Mrs. Stoesser was, at the time, &c., indebted to the prisoner in an amount equal to or greater than the sum of money obtained, and also found that the prisoner, when he made the false representations and obtained the money, intended to apply it on such debt, and did subsequently so apply it or credit it, that they must' acquit, however false or designed the representations by the prisoner may have been.

My conclusion is, that the conviction of the prisoner should be reversed, and that a new trial should be ordered.

Judgment affirmed.