208 A.D. 174 | N.Y. App. Div. | 1924
Prior to March 23, 1921, the firm of Dunn & Co. was doing a stock brokerage business at No. '32 Broadway, New York city. On that day the business was taken over and continued at the same place by the firm of Dillon & Co., composed of Daniel Dillon and Edward N. Post. On April 28, 1921, Post -withdrew from the firm and the business was continued by Daniel Dillon under the same firm name. The defendant was' an employee acting as business solicitor for Dunn & Co. and also subsequently for Dillon & Co. On August 11, 1921, he. executed and caused or permitted to be filed in the county clerk’s office of New York county, a certificate
The foregoing facts establish a case of larceny by some person or persons. A fiduciary relationship existed between Dillon & Co. and Shaul and a misapplication or misappropriation of his money constituted a larcenous conversion thereof. (People v. Meadows, 199 N. Y. 1; Britton v. Ferrin, 171 id. 235.)
The defense is that in signing the certificate filed in the county clerk’s office and in delivering to the New York bank the papers to which reference has been made, the defendant was acting for the accommodation of Daniel Dillon, the former proprietor, who was to be absent from New York for some time and on the statement of Dillon’s attorney that said papers were necessary so that the defendant might sign the firm checks in Dillon’s absence; that he did not understand or appreciate the significance or purport of said papers; that there was in fact no change in the business; that the defendant continued merely an employee of Dillon; that with the exception of checks signed by him he performed no further or different duties than formerly; that he was absent from the New York office the greater part of the time soliciting’business as he had formerly done; that he signed Dillon & Co. checks in blank and a number thereof at the same time on different occasions so that they might be used as required during his absence from the office; that such checks were turned over to the cashier signed by the defendant in blank using the signature Dillon & Co. and all of them were filled in and used by said cashier; that the defendant
The prosecution called as witnesses four residents of Amsterdam and vicinity who had similar experiences as Mr. Shaul with Dillon & Co. In each instance the district attorney with much minuteness and particularity showed the transaction substantially the same as the transaction with Mr. Shaul. Thus there were proved four independent crimes in addition to the one charged in the indictment. This evidence was received for the purpose of showing the criminal intent of the defendant. • There is no doubt about the general rule in regard to such evidence or the exception to the rule on which exception the prosecution relies to justify such evidence. The difficulty is in applying the exception to the facts of particular cases. The rule and the exception have been the subject of frequent discussions by the courts of this and other jurisdictions. The prosecution relies largely on the case of People v. Katz (209 N. Y. 311). In that case the court after stating the general rule that a man cannot be convicted of one crime by proof that he committed another continued at page 327 as follows (the italics being mine): “ There are various recognized exceptions to this rule, however, and one of them is that when guilty knowledge, quite commonly called intent, is an essential ingredient of the crime charged, evidence is admissible of similar crimes or acts committed or attempted at or about the same time by the person charged. The reasons for the rule and the exception are equally simple and obvious. The general rule is rooted in the principle that a man may not be convicted of one crime simply because he may be shown guilty of another when there is no connection between the two. Simple proof showing that A. shot B. at one time and place throws no light upon the charge that A. poisoned C. at another time and place. In either of these cases guilty knowledge or intent is inferable from the nature and surroundings of each act, and each must be judged on its own circumstances. Quite another principle is to be invoked, however,
In charging the jury the court, adopting some of the language of " the Katz case, said: “ This testimony was admitted solely on the question of the guilty knowledge or intent of the defendant. In other words guilty knowledge of a defendant in such a case as this
The evidence was not only inadmissible but highly prejudicial. In Commonwealth v. Shepard (1 Allen, 575, 581) the court said, in commenting on this kind of evidence: "It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on tñal, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty .of another. For this reason, it is essential to the rights of the accused that, when such evidence is admitted, it should be carefully limited- and guarded by instructions to the jury, so that its operation and effect may be confined to the single legitimate purpose for which it is competent. Roscoe Crim. Ev. 90, 94. Rex v. Ball, Russ. & Ry. 132. Commonwealth v. Eastman, 1 Cush. 189, 216.” In Copperman v. People (56 N. Y. 591) the court says: " I agree with the learned counsel for the prisoner, that guilty knowledge is a delicate question, and I concur fully with the position that courts should be cautious in receiving evidence of outside facts upon that question, and that all facts which do not directly bear upon the question should be excluded.” In Commonwealth v. Jackson (132 Mass. 16, 20) it is said: " Evidence of the commission of other crimes by a defendant may deeply prejudice him with the jury, while it does not legally bear upon his case. * * * Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues,- and thus diverts the attention of the jury from the one immediately before it; and,
As I have before indicated, the People made out a case against the defendant. The latter presented his explanation. The sufficiency thereof was a question for the determination of the jury. It "was the right of the defendant to have a fair trial and to have the question of his guilt or innocence determined on competent evidence. If I am right in my reasoning, incompetent evidence was received, the tendency of which was to arouse the indignation of the jury and to prevent the defendant from receiving the impartial consideration of the case to which he was entitled.
The judgment of conviction should be reversed and a new trial granted.
All concur; McCann, J., voting for reversal and dismissal of the indictment on the ground that the indictment was improperly found in Montgomery county.
Judgment of conviction reversed on the law and new trial granted.
See Chase’s Steph. Dig. Ev. (2d Am. ed.) p. 42, art. 11.— [Rep.