Skiff v. People, 2 Park. Cr. 139

Skiff v. People

2 Park. Cr. 139 | N.Y. Sup. Ct. | 1853

By the Court, Wright, J.

The first objection is, to the sufficiency of the indictment: the second to the proof sustaining it. Under these two general objections, we are to consider the case.

1. As to the indictment. It alleges that the defendant, with the intent to cheat and defraud one Samuel Hale, made certain false pretences, which pretences are set forth with particularity in the pleading; that Hale, believing such false pretences and representations, was induced by reason of them to deliver, and *145did then and there deliver to the defendant, thirty-nine head of cattle, of the value of $600, of the property of Hale; and the defendant did designedly receive and obtain the cattle by means of the false pretences, and with intent to cheat and defraud Hale. The pleading charges in the language of the statute, that the defendant with intent, &c., did obtain from Hale, certain personal property, &c. That Hale was induced by the false pretences to deliver, and did deliver to the defendant, and that the defendant did receive and obtain, certain cattle. It does not, however, in terms allege a sale of the cattle from Hale to Skiff, or any other bargain, by which the property was transferred. from the one to the other; and accordingly when the public prosecutor proposed to show a bargain and sale of the cattle, by which they were transferred, the defendant objected, on the ground that no bargain and sale were alleged in the indictment. We are of the opinion that the indictment is not defective in this respect. It sufficiently alleges the facts constituting the crime. The offence consists in obtaining the property, whether this be through a sale or bailment, or in any other way. The fact is specifically alleged that the cattle were delivered to, and obtained by the defendant by means of the false pretences, that is, that they were transferred to him. And under this allegation, evidence of the manner of the transfer was admissible.

Another objection taken to the proof of any bargain and sale of the cattle, was that the property and its location was insufficiently described in the indictment to admit of any proof thereof. From the indistinctness of this objection, it is a little difficult to say what property is alluded to. But the counsel for the defendant tells us that he referred to the two pieces of land which Skiff, as the pleading alleges, pretended to own. The indictment charges the pretence of owning two pieces of land in the town of Easton, in the county of Washington, designating them as the Home farm or place, and the Van Schaack farm. This description seems to us to be sufficiently definite. It is unlike the case of The People v. Lord, (9 Barbour, 675,) *146where the indictment described the lands generally to be in the state of Texas.

Hale parted with his property on credit. It was part of the agreement by which Skiff obtained the cattle, that he was to give a note payable at a bank, on which Hale could get the money. On the trial, the district attorney asked the witness if the note was paid; to this question the defendant’s counsel objected, on the ground that it was not alleged in the indictment that the note was not paid. The court overruled the objection, and the defendant’s counsel excepted. There was no error in this. It was no reason for rejecting the inquiry, that the fact of nonpayment had not been alleged in the indictment. Had the objection been that the offence charged required no proof of the nonpayment of the note to make it complete, and consequently such proof was immaterial, there might have been more force in it. But then we could hardly have come to the conclusion that it was wholly irrelevant. It tended at least slightly, in Connection with other proof in the case, to characterize the quo animo of the transaction on the part of the defendant.

There is nothing in the objection that the indictment does not falsify all the pretences. It is not necessary to negative all the pretences in the indictment, or to prove all that are negatived to be false. (9 Wend. 182; 11 Wend. 567.)

2. As to the sufficiency of the proof. At the close of the testimony, the defendant’s counsel moved for his discharge, for the reasons, 1st. That by the evidence it appeared that Hale parted with his property under the understanding, on his part, that he was to receive a good endorsed note, and not on the faith of the representations made by Skiff. 2d. That Hale had not shown ordinary diligence to ascertain the defendant’s circumstances, although it was proved that he had abundant means within his power to ascertain the same. 3d. That the Court of Sessions had not jurisdiction to try the cause; and that it could only he tried in the county of Rensselaer, where the offence, if any, had been committed. The court denied the motion for discharge, holding that the questions raised involved matters of fact for the consideration of the jury.

*147If the fact had stood out in the case uncontroverted, that Hale was not influenced in parting with his property by the false pretences and representations of the defendant, but that he relied on an agreement that he was to receive a good indorsed note, the court should have discharged him or at least directed the jury to acquit. But this was not so. Hale expressly testifies that he was induced by the defendant’s representations of "his solvency, his ability to pay, &c., to let him have the cattle, and that except for such representations being made, he should not have parted with his property.

The case does not show that Hale did not use ordinary prudence and diligence in inquiring into the truth of the pretences. He inquired of Tabor, the landlord, and neighbor of the defendant. But the degree of prudence, and the sufficiency of the pretences to deceive, were questions of fact for the jury, and they have found against the defendant.

I do not think tnere is any force in the point as to jurisdiction. The transaction took place in the county of Washington. It was th ere the pretences were made and believed, and the cattle weighed and delivered. The sale was there consummated and possession taken of the property. The waiving, by Hale, of the giving of the note until the parties arrived in Troy, can not have the effect to change the place of making the representations and the delivery of the cattle. It is sufficiently clear from the evidence, that the offence for which the defendant was indicted, was committed in the county of Washington; that there the defendant obtained the property from Hale, and of course the Court of Sessions of that county had jurisdiction.

The judgment of the Court of Sessions of the county of Washington is affirmed.