76 N.Y.S. 211 | N.Y. App. Div. | 1902
On the 15th day of November, 1900, the defendant was presented with a bill for thirty-five dollars and forty-five cents for board and
The indictment contains two counts, one charging grand larceny in the second degree under section 528 of the Penal Code in obtaining the money “by color or aid of .fraudulent or false representation or pretense,” with “ intent to deprive or defraud ” the proprietor of the hotel whose money was thus obtained, and the. other charging grand larceny in the second degree under' section 529 of the Penal Code in obtaining the money willfully and with intent to defraud the owner “ by color or aid ” of the check, knowing “ that the drawer or maker thereof ” was “ not entitled to draw on the drawee for the sum specified therein. * * * although no express representation ” was “ made in reference thereto.”
It was. shown that the defendant, on being arrested and informed, that the arrest' was on a warrant “on a bad check, in the Hotel Navarre,” said to the officer • on the way to the station house, “Now, we can straighten this.matter out; I can get money and make. good that check. You have no feeling against me, have you?” No other material evidence was introduced by the People and the defendant did not take the stand.
. There can be no doubt, we think; that the evidence-is wholly.
The question of the sufficiency of the evidence to hold the defendant under section 528 of the Penal Code for obtaining money “ by color or aid of fraudulent or false representation or pretense,” with intent to deprive the true owner thereof, is not so free from doubt. The jury were doubtless justified in finding from all the facts and circumstances that he deceived the cashier with reference to his true name, and that in obtaining the money he falsely represented or pretended that his true name was John D. Wilson. (People ex rel. Phelps v. Oyer & Term. County of N. Y., 83 N. Y. 436, 453; Fowler v. People, 18 How. Pr. 493; Kling v. Irving Nat. Bank, 21 App. Div. 373; People v. Pinckney, 67 Hun, 428.)
If the facts and circumstances were such as to indicate that the check would not have been cashed on his credit if it had been payable to his order by his true name, then probably his conviction would have been justified; but it does not appear that the cashier was led by the fictitious name to believe that he was another individual of financial responsibility. The credit was given to him and he remained liable civilly. The cashier was in no manner misled except as to the fact that he had registered under an assumed name. The false pretense or representation with regard to his true name is not what deprived the ■ owner of his property. The check was cashed in the expectation that it was good and would be paid. Payment was not refused because of the fictitious name or indorsement of the payee, but solely because of the want of funds to the credit of the maker. The false pretense or representation to constitute larceny, must have some bearing upon the question as to whether
We think that the evidence is not sufficient to sustain his conviction. The rule is necessarily quite different with reference to the criminal liability in having a personal check cashed, and in having a check payable to one’s order cashed. In the former case, he is presumed to know the condition of his own bank account; but where a person asks to have a check payable to his order cashed, while he guarantees payment, it is evident that he may not know whether the account of the drawer of the check is good, and he will not be liable criminally unless he makes some express material representation or knows that the check is not good. (People v. Moore, 37 Hun, 84.) Where neither the signature nor financial standing of the drawer or payee is known, there' is no adequate protection afforded, either by the civil or criminal law, to one paying such a check without inquiry and obtaining satisfactory representations.
In the case at bar, the People have failed to introduce evidence which tends to establish the guilt of the defendant beyond a reasonable doubt. The facts and circumstances are extremely suspicious, but they do not necessarily point to the guilt of the defendant and are not inconsistent with his innocence; and the conviction, therefore, cannot stand. (People v. Fitzgerald, 156 N. Y. 253.)
The judgment should'be reversed and a new trial granted.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed, new trial granted.