130 N.Y.S. 465 | N.Y. App. Div. | 1911
The defendant was indicted for the crime of grand larceny in the second degree for having obtained from the firm of Moskowitz Bros, property of the value of $162.25, consisting of curtains and bedding, by feloniously, fraudulently and falsely pretending and representing to the said copartners that he was the owner of a large quantity of diamonds and had deposited the same with the corporation 'called Tiffany & Co., and that the same were then in the custody of the said corporation, by color and aid of which false and fraudulent pretenses and representations defendant obtained said property, whereas, in fact, said representations were untrue and the defendant was not the owner of any diamonds, nor did he deposit the same with Tiffany & Co. or any other person.
• We deem it unnecessary to discuss the exceptions presented . by the record, for while some of them are of sufficient gravity to warrant the granting of a new trial, the conclusion which we have reached as to the nature of the offense itself renders their discussion unnecessary. . Defendant claims that even conceding that the prosecution established the facts charged in the indictment, the crime of grand larceny by the aid of fraudulent or false representations was not committed, because of the provisions of section 544 of the Penal Code, which, so far as material, are as follows: “A purchase of property by means of a false pretense is not criminal, where the false pretense relates to the purchaser’s means or ability to pay, unless the pretense is made in writing and signed by the party to be charged. ” (This section now forms section 947 of the Penal Law.) To constitute tfie crime of grand larceny by false pretenses four ele
The testimony of Moskowitz established that the representation that defendant had diamonds in Tiffany’s only made the impression upon him that the man was well to do and would pay for the goods as soon as he received them and' was good for the amount. It is plain that if this representation as'to his ownership of diamonds in the custody of a third party was made by defendant, he had no other purpose and meant, to produce no other result save to make false pretense as to his means or ability to pay. It was so understood by the persons to whom he had made the -representations and to whom it- was communicated, and it could have no other, logical effect. It amounted to a statement that he was able to pay for the goods he ordered because he had means to pay therefor in the shape of property consisting of diamonds, convertible into cash, in the custody of a reputable house, easily accessible. As was pointed out by Cullen, J., in People ex rel. Corkran v.
We are of opinion, therefore, even assuming that Moskowitz Bros, relied upon defendant’s representations as to the diamonds in selling him the goods in question (of which upon the record there is grave doubt), still that representation referred solely to the defendant’s means or ability to pay and not being in writing, no crime was- committed.
The judgment-and order appealed from should, therefore, he reversed, the indictment quashed and the prisoner discharged.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment and order reversed, indictment quashed and defendant discharged. Order to he settled on notice. ■