115 N.Y.S. 453 | N.Y. App. Div. | 1909
Lead Opinion
The defendant was convicted on the second count of the indictment, which charged him with having in his possession, custody and control as bailee and agent, certain personal property, to wit, a necklace of the value of $6,500, and that he did feloniously appropriate the said goods, chattels and personal property to his own use with the intent to deprive and defraud the owners thereof of the same. It appeared from the evidence that the firm of Ludeke & Heiser were dealers in precious stones and the owners of a certain pearl necklace ; that the defendant had had various business transactions with it "from time to time since 1898; that on September
The other member of the firm testified that he had a conversation with the defendant a few days after September 26,1906, and asked the defendant whether he could give the witness a report on that necklace and the defendant said that he had obtained it for a special prarpose to show to a person who had two daughters, one of whom was in possession of a necklace already and the other was trying to get one; that the father was going to buy one for the second daughter and the necklace would probably be sold, but he could not hurry it, and the witness should have a little patience; that subsequently, on October fifteenth, he had a talk with the defendant over the telephone, and told the defendant he wanted a report on the necklace by Saturday, the twentieth, and the defendant said there would be no doubt about a report on that' day, and there would undoubtedly be a sale, that a memorandum- transaction had a special meaning, well understood in the trade, which is that the property remains the property of the dealer, and the person receiving the article is. to either sell it and account for the proceeds or return the article upon demand; that the defendant was subsequently adjudicated a bankrupt, and there was delivered to the complainant- a pawn ticket by the trustee in bankruptcy representing this article, the complainant
The memorandum which had been sent to the defendant with the necklace was not produced, but the testimony was that it was a printed blank filled up as describing the particular article delivered on memorandum, and the printed part of this ticket or invoice was introduced in evidence. That contained the word “memorandum” and also the following: “ The goods described below are sent to you for your inspection. They are the property of Ludeke & Heiser, and are to be returned to them on demand.” It was then conceded that the defendant had pawned this necklace, receiving as a loan $2,000 on September 19,1906, two days after he had received it from the complainant.
The People having rested, the defendant was called as a witness and testified that he had had business with the complainants since 1898 ; that he bought goods from the complainants and they had sent him goods on numerous occasions; that in every such instance he returned to the complainants the goods he had obtained from them or •the money for them. The defendant then testified to his conversation with one of the complainants, at which he said that he was in the market for a pearl necklace ranging from $10,000 to $15,000 ; that the complainant said that the nearest they had to that was $6,500, whereupon .the defendant said that he did not think one for $6,500 would be large enough, but that he would like to look at it, and thereupon the complainant said he would send it to him. On cross-examination defendant said that he had received in all. his dealings with the complainant a bill containing the printed matter which had been introduced in evidence; that on this bill were the words that the goods described were sent to the defendant for his own inspection, and that they were the property of Ludeke & Heiser, and were to be returned to them on demand; that that was their regular style of billhead; that, leaving out the words in writing, every transaction lie had with the complainant was. accompanied on their part by a paper containing the same printed matter as the plaintiff’s Exhibit D; that when he received this jewelry from the complainant he knew that it was a memorandum transaction.
There can be no question but that the verdict was amply sustained by the evidence. The defendant concedes having received this
The case of People v. Loomis (178 N. Y. 400), relied on by the defendant, is not at all in point. There the defendant was indicted for stealing property which it was conceded was stolen, the only qnes
The judgment is, therefore, affirmed.
Clarke, Houghton and Scott, JJ., concurred; McLaughlin, J., dissented.
Dissenting Opinion
The indictment under which the defendant was convicted charged him witli the larceny of a pearl-necklace, and it in no way aided the jury in determining whether the charge were true to show that he had about the same time stolen another necklace. There was no possible connection between the defendant’s transaction with the firm of Ludeke & Heiser, in which he procured the necklace referred to in the indictment, and that by which' he procured one from Eisemann & Bros. The testimony offered on the part of the People as to the latter transaction should have been excluded. It seems to me it is no answer to say that proof of this transaction was received for the purpose of showing defendant’s intent. The testimony offered on the part of the People as to the manner in which the defendant obtained possession of the necklace referred to in the indictment and his subsequent disposition of the same, if believed, amounted to larceny. His intent to wrongfully appropriate the same to his own use was to be inferred from the acts themselves, and this upon the theory that every person is presumed to intend to bring about the natural results of his own acts. Evidence cannot be introduced to establish the commission of an independent crime for the purpose of showing the guilt of a person indicted for a specific offense. (People v. Sekeson, 111 App. Div. 490.)
In People v. Crapo (76 N. Y. 291) this rule was referred to, the court saying: “ An accused person is required to meet the specific
In the recent'case of People v. Loomis (118 N. Y. 400) the court reiterated what constituted an exception to tile general rule as to the inadmissibility of evidence respecting independent crimes and ' as there said: “ We cannot say that the error thus tiommitted did not affect the substantial rights of the defendant. It may be that he would have been convicted without the evidence of his confession of the Lewis burglary, but it is enough to say that it may also-have' been sufficient to resolve against, Mm any reasonable doubt that might previously have been entertained as to his guilt.”
I am of the opinion that the judgment of conviction should be reversed and a new trial ordered.
■ Judgment affirmed. •