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Bork v. People

91 N.Y. 5 Court N.Y. Decision date 1883-01-16 English

Delivered by Andrews, Oh. J.

Contents

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Joseph Bork, Plaintiff in error, v. The People of the State of New York, Defendant in error.

Headnote

Where the doing of any one of several things constitutes an indictable offense an indictment may in a single count group them together and charge the accused with having committed them all, and a conviction may be had on proof of the commission of any one of the acts charged, without proof as to the others.
The act of 1875 (Chap. 19, Laws of 1875), “ to provide more effectually for the punishment of peculation and other wrongs affecting public moneys, and rights of property,” applies as well to cases where the offender is an officer, agent or servant, having the custody of funds or property charged to have .been misappropriated, or owing'a special duty in relation thereto, as to a private individual having no official or confidential relation to the State or municipality defrauded.
The legislature has power to provide by an independent statute, like the one referred to, that certain acts of embezzlement, punishable by the existing law, shall constitute a distinct offense, and to affix a severer punishment than that provided by the general law for that class of offenses.
In an indictment under said statute for the unlawful conversion of property, or funds belonging to a municipal corporation by an officer thereof, it is not necessary to aver the fiduciary character of the accused. .
This is a fact, however, proper to be proved on the trial.
Negotiable bonds of a municipal corporation, complete in form and capable of becoming effective instruments in the hands of a bona fide holder are although unissued, “ property” within the meaning of said act.
People v. Loomis ( 4 Denio, 880 ), distinguished.
On the trial of an indictment under said act, it appeared that the prisoner who was treasurer of the city of Buffalo, as such, received for sale, in accordance with the usual custom, certain negotiable bonds of the city, which the common council had authorized to be issued and sold for city
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purposes; these he put into the hands of a broker with directions to sell and credit the proceeds to a firm of which the prisoner was a member, which was done. Said firm was at the time indebted to the broker in a sum exceeding the sum realized from the sale of the bonds. Mo entry of the sale was made in any manner in the treasurer’s books. The indictment charged that the accused “feloniously, wickedly and wrongfully did obtain and receive * * * and convert ” to his own
use said bonds. Held, that the transaction was a conversion of the bonds, and, assuming that the prisoner did not wrongfully receive or obtain them, his wrongful conversion thereof was sufficient to sustain a conviction.
The indictment gave a full description of the bonds, held that it was not defective because of the omission of an averment, that the bonds were held on behalf of “ any public or governmental interest,” as this was necessarily implied in the description.
Also held, that an averment that the bonds were negotiable was unnecessary.
(Argued October 9, 1882 ;
decided January 16, 1883.)
Error to the General Term of the Supreme Court, in the fourth judicial department, to review judgment which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Erie, entered upon a verdict convicting the plaintiff in error of the offense hereinafter stated.
The indictment under which the defendant was convicted, after averring in the first count the incorporation of the city of Buffalo, and that during the time mentioned in the indictment, Thomas JR. Clinton was comptroller of the city, and as such, held for and on behalf of the city, two hundred unpaid and unsatisfied bonds, known as city and county hall bonds, of the denomination and value of $1,000 each, the “ credits, funds and property ” of the city, proceeds in the charging part to aver and charge that on the first day of October, 1875, at Buffalo, the defendant Bork, “with intent to defraud the said city of Buffalo, etc., then and there feloniously, wickedly and wrongfully did obtain and receive from Thomas K. Clinton, such officer as aforesaid, etc., and did convert to his said Joseph Bo'rk’s own use and dispose of one hundred bonds of the city of Buffalo, * * * issued by the said city of Buffalo, * * * of the kind known as city and county hall bonds, in and by each of which bonds the said city of Buffalo promised and
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agreed to pay the sum of $1,000, with interest thereon, each being dated, * * * and of the denomination and value of $1,000 each, a further and more particular and accurate description of which is to the jurors unknown, * * * of the funds, credits and property of the said city of Buffalo, etc., then and there so as aforesaid, held by said Thomas R. Clinton, as such officer, * * *• officially for and on behalf of said city, contrary to the form of the statute.” The second and third counts are founded upon the same transaction set forth in the first count. It was found on the trial that Mr. Bork was treasurer of the city of Buffalo, from January 1,1872, to January 1,1876, having been elected treasurer for two successive terms of two years each. Sometime in December, 1875, it was discovered that Bork was a defaulter to the city, and an investigation was instituted, in the course of which it was ascertained that his defalcation amounted to about the sum of $475,000. When the defalcation commenced, does not definitely appear, but it was shown that it was as early as October, 1873. The money misappropriated by Bork was derived from taxes, the sale of city bonds, and other sources of municipal revenue, and was to a great extent turned over, or deposited by him with the firm of Lyon & Co., a firm engaged in the real estate and banking business in the city of Buffalo, of which Bork was a member, and was used in their business. The firm of Lyon & Co. had no capital, and when the defalcation of Bork was discovered, it was found to be insolvent. The material facts in respect to the city and county hall bonds mentioned in the indictment, and their disposition by Bork, are as follows : By the act chap. 680, Laws of 1871, § 14 it was made the duty of the mayor and comptroller of the city of Buffalo, to borrow upon the faith and credit of the city, the money necessary to pay its proportion of the expense of erecting a public building in the city of Buffalo, to be known as the city and county hall, for the use of the county of Erie and the city of Buffalo, and to issue interest-bearing bonds of the city therefor, payable not more than fifty years, nor less than twenty years from their date, which bonds were to be registered in the office of the comp-
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trailer, and to be negotiated by the mayor and. comptroller as fast as the moneys should be required by the building commissioners appointed by the act, on the best attainable terms, but at not less than their par value, the moneys received therefor to be deposited with the treasurer of the city, who was directed to keep a separate account thereof, and to pay therefrom, upon the order of said commissioners, from time to time, the amounts required to pay the city’s proportion of the expenditures authorized by the act. By resolution of the common council of the city) adopted Aug. 23, 1875, approved by the mayor, the mayor and comptroller were authorized and directed to issue the bonds of the city to the amount of $125,000, under the act of 1871, the bonds to bear date September 1,1875, and to negotiate the bonds, and deposit the proceeds with the city treasurer, to the credit of the city and county hall building fund. The mayor and comptroller thereupon caused to be printed one hundred and twenty-five bonds of $1,000 each, with interest coupons attached, dated September 1, 1875, purporting to be bonds of the city of Buffalo, authorized by said chapter 680, of the Laws of 1871, payable to bearer, the principal at thirty-two years. The bonds were duly executed by the mayor and comptroller, under the seal of the city, and deposited with the comptroller. The comptroller on or about the 20th day of September, 1875, delivered to Bork seventy-five of the bonds, to be sold by him on account of the city. Bork sent them through a bank in Buffalo to a bank in the city of Hew York, subject to his order. He went to Hew York the same day, received the bonds from the bank there and put them into the hands of one Moran, a broker in that city, the correspondent of Lyon & Co., with directions to sell the bonds and credit the proceeds of sale of twelve of the bonds to Lyoncfc Co., on their account with Moran, and to deposit the proceeds of sale of the remaining sixty-three bonds in the Bank of Hew York, to the credit of the Bank of Commerce of Buffalo, one of the deposit banks designated by the common council of Buffalo for the deposit of city funds. The bonds were sold by Moran, who deposited the proceeds as directed, by crediting the ac
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count of Lyon & Co. $12,768.00, the proceeds of twelve of the bonds, and depositing to the credit of the Bank of Commerce $67,252.50, the proceeds of the remaining sixty-three bonds, which sum the Bank of Commerce, on being advised, credited to the account of Bork as treasurer. Lyon & Co., at the time of this transaction, were indebted to Moran on overdrafts in a sum exceeding the credit to their account from the sale of the bonds. Bork made no entry in the treasurer’s books of the sale of the bonds. He neither charged himself with the bonds nor credited the city with the proceeds. The credit in the Bank of Commerce did not disclose the source from which it was derived. The delivery of the bonds by the comptroller to Bork for sale was in accordance with the general custom in respect to bonds issued by the city during the incumbency of Bork. The city during that period had issued bonds to the amount of one or two millions of dollars for various purposes, and a large part of them had been negotiated by Bork, they having been placed in the hands of the comptroller for that puroose
George F. Comstock for plaintiff in error.
The offense described in the indictment was not proved, unless it was shown that the plaintiff in error feloniously or wrongfully obtained the bonds. (Comm. v. Simpson, 9 Metc. 138 .) Embezzlement is a distinct offense, predicated on fiduciary relations; and under an indictment for larceny in a single count, a conviction thereon could not be sustained by proving an embezzlement in a trust relation, although the offenses were similar, and the punishment of both the same. (2 Bishop on Crim. Law [3d ed.], §§ 327, 332; People v. Dowling, 84 N. Y. 486 ; Coleman v. The People, 55 id. 61.) If the thing which is the subject of the alleged theft was freely delivered to the accused, if the intelligent will of the owner goes with such delivery and is not cheated into assent by some special artifice and fraud, no proof of the subsequent conversion or misappropriation of the thing so delivered can be received to establish the crime of larceny. ( 2 Whart. 1779 , 1790, 1935; 3 Chit. Crim. Law, 918 , 919; 4 Jac. Law Die.,
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“Larceny, 75, marginal 226; Archibald, 1185; Russ. & M. C. C.160; Williams v. State, 44 Ala. 396 ; 2 East’s P. C. 694; 1 Hale’s P. C. 505.) The indictment sets forth no criminal offense, because the subject is stated to be the bonds of the city of Buffalo, in the official possession of the comptroller, which means unissued bonds, whether negotiable or not. The conclusion is only the more certain, negotiability not being averred. (People v. Loomis, 4 Den. 380 .) The motion to quash should have been granted on the ground that nothing in the indictment shows that the bonds alleged to have been feloniously obtained and received were authorized and valid instruments. (Dillon on Mun. Corp. 81.) It is a fundamental requirement of the statute that whatever thing may be the subject of the crime, it must be held or owned “for or on behalf of a public or governing interest.” (Wood v. People, 53 N. Y. 511 ; People v. Allen, 5 Den. 76 ; Lohman v. People, N. Y. 380; People v. Payne, 3 Den. 88 .)
Ed/ward W- Hatch, district attorney, for defendant in error.
A city, being a municipal corporation, is a public and governmental interest, subject to- the control of the legislature. (2 Burrill’s Law Dict. 732.; 2 Kent’s Com. 275 ; People v. Morris, 13 Wend. 325 ; Roosevelt v. Draper, 23 N. Y. 318 -324; Gamble v. Village of Watkins, 7 Hun, 448 ; Hodges v. City of Buffalo, 2 Den. 110 ; Leonard v. City of Brooklyn, 71 N. Y. 498 .; Lowber v. Mayor, etc., of N. Y., 5 Abb. Pr. 325 ; LeCouteulx v. City of Buffalo, 33 N. Y. 333 ; People v. Ingersoll, 58 id. 1; Brinkerhoff v. Board of Education, 37 How. Pr. 449 ; Sillcocks v. Mayor, 11 Hun, 431 -432; Dickinson v. City of Poughkeepsie, 75 N. Y. 65 -74; Guest v. City of Brooklyn, 8 Hun, 97 ; Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 234 ; People, ex rel. Hayden, v. City of Rochester, 50 id. 525 ; Matter of Meade, 74 id. 216 ; Merriweather v. Garrett, 102 U. S. 472 -511; Vanderwerker v. People, 5 Wend. 530 ; People v. Breese, 7 Cow. 429 ; Farley v. McConnell, 7 Lans. 428 ; Wood v. People, 1 Hun, 381 ; Howard v. Moot, 64 N. Y. 264 -271; S. C., 2 Hun, 475 ; Pat
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ten v. N. Y. El. R. R. Co., 3 Abb. [N. C.] 306-310; Fountleroy v. Hanible, 1 Dill. 118 ; Stier v. City of Oskaloosa, 41 Iowa, 383 ; Village of Winisook v. Gokey, 49 Vt. 282 ; Board of Commrs. v. Spilter, 13 Ind. 235 ; State v. Power, 25 Conn. 48 ; Hill v. Bacon, 53 Ill. 477 ; Gilbert v. Moline, 19 Iowa, 319 ; Goodman v. Appleton, 22 Me. 453 ; LaGrange v. Chapman, 11 Mich. 499 ; Eaton C. & B. Co. v. Avery, 83 N. Y. 31 ; Merchants' Nat. Bk. v. Hall, 338 ; Slater v. Jewett, 85 id. 61-68 .) It is the citizens of a city and not its officers who constitute the corporation. (Lowber v. Mayor, etc., of N. Y., 5 Abb. 325 .) The' description in the indictment of the bonds converted was sufficient. (Haggarty v. City of Brooklyn, decided by Com. of Appeals in September, 1874; Casey v. N. Y. C. R. R. Co., 6 Abb. [N. C.], 104; Armstrong v. Cummings, 20 Hun, 313 -314; Hartwell v. Root, 19 Johns. 345 ; Nelson v. Eaton, 26 N. Y. 410 ; Arent v. Squire, 1 Daley, 347; People v. Carpenter, 24 N. Y. 86 ; Williams v. W. U. Tel. Co., 9 Abb. [N. C.] 437-447; Chaut. Co. Bk. v. Risley, 19 N. Y. 369 ; DeGroff v. Am. Linen Thread Co., 21 id. 124.) An indictment is sufficient which states the substance of the offense with the circumstances necessary to render it intelligible and inform the defendant of the allegations against him. (Pontius v. People, 82 N. Y. 339 , 345 ; People v. Phelps, 5 Wend. 9 ; People v. Warner, id. 271; Briggs v. People, 36 N. Y. 431 , 436; People v. Rynders, 12 Wend. 425 ; People v. Charles, 3 Den, 212 ; 1 Comst. 180; People v. Ball, 42 Barb. 324 ; People v. Phelps, 72 N. Y. 334 ; Tulby v. People, 67 id. 15; Schrumpf v. People, 14 Hun, 10 ; Gibson v. People, 5 id. 543-544.) The employment in an indictment of a word which ex vi termini imports a material fact not expressly averred is sufficient. (Page v. People, 3 Abb. on App. 439; 6 Park, Crim. R. 683 .) The term “ bond ” ex vi termini imports a sealed instrument. (1 Burrill’s Law Dict. 155; Cauley v. Deeren, Harp. [S. C.] 434; Taylor v. Glaser, 2 S. & R. 502; Denton v. Adams, 6 Vt. 40 ; Deming v. Bullitt, 1 Blackf. [Ind.] 241; Skinner v. McCarthy, 2 Port. [Ala.] 19; Harmon
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v. Harmon, 1 Baldw. 129 ; State v. Thomson, 49 Mo. 188 ; People v. Wiley, 3 Hill, 194 .) Facts, and not evidence of facts, should be pleaded. (Knowles v. Gee, 4 How. Pr. R. 317; Kelley v. Brensing, 33 Barb. 123 ; Tuttle v. People, 36 N. Y. 431 , 436.) The indictment is good in fact, as an indictment for grand larceny. (Tully v. People, 67 N. Y. 15 ; Phelps v. People, 6 Hun, 401 ; Phelps v. People, 72 N. Y. 334 .) The element of value is not of the essence of the offense created by the statute. It is sufficient even if the actual value be of the most trifling character, or even though there may be no appreciable or market value. (2 R. S. 702-703 [marg.], §§ 33, 34; [6th ed.] 3 B. S. 985, §§ 55, 56; 2 B. S. 678, § 60 [marg.] 3 id. [6th ed.] 952, § 75; People v. Campbell, 4 Park Crim. 386; Mulally v. The People, 86 N. Y. 365 ; People v. Phelps, 72 id. 334; People v. Wiley, 3 Hill. 194 ; Commonwealth v. Sand, 7 Metc. [Mass.] 475-476; U. S. v. Moulton, 5 Mason, 537-551; Rex v. Clark, Russ. & Ry. 181; Beg. v. Morris, 9 Carr. & P. 347.) It was not necessary that there should be a felonious obtaining or receiving. (2 Burrill’s Law Dict. 840; 3 Blackstone, 2; 4 id. 1; 3 Steph. Com. 350; Foster v. People, 50 N. Y. 598 ; People v. Park, 41 id. 21; Shay v. People, 22 id. 317; Tulle v. People, 67 id. 15; People v. McDonald, 43 id. 61-64.) The facts and circumstances proved of the prisoner’s omission to charge himself with the bonds, or to account for the manner in which he obtained the moneys with which he credited himself as treasurer, furnished further evidence of motive, intent and fraudulent purpose. (People v. Call, 1 Denio, 120 ; People v. McDonald, 43 N. Y. 61 ; Russell on Crimes, 191, 64, 65.)

The indictment under which the conviction was had, which is now the subject of review, was found under the act of February 17, 1875 (Chap. 19), entitled “An act to provide more effectually for the punishment of peculation and other wrongs affecting public moneys and rights of property.” The first section, which defines the offense of which the defendant was convicted, is as follows: “ § 1. Every

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person who, with intent to defraud, shall wrongfully obtain, receive, convert, pay out, or dispose of, or who with like intent, by willfully paying, allowing, or auditing, any false or unjust claim, or in any other manner or way whatever shall aid or abet any other in wrongfully obtaining, receiving, converting, paying out, or disposing of, any money, fund, credits, or property, held or owned by this State, or held or owned officially or otherwise, for or on behalf of any public or governmental interest, by any municipal or other-public corporation, board, officer, agency, or agent of any city, county, town, village, or civil division, sub-division, department, or portion of this State, shall, upon conviction of such offense, be punished by imprisonment in a State prison for a term not less than three years, nor more than ten years, or by a fine not exceeding five times the loss resulting from the fraudulent act or acts which he shall have so committed, aided or abetted, to be ascertained as hereinafter mentioned, or by both such fine and imprisonment.”

The indictment charges in the conjunctive that the defendant, with intent to defraud, did feloniously and wrongfully obtain, receive, convert and dispose of the bonds mentioned. The statute is pointed against the criminal misapplication of public funds or property. The offense may be committed in any one of the several ways mentioned, that is, by receiving, obtaining, converting, etc., such funds or property wrongfully, with intent to defraud. It was not necessary to prove that the defendant did all the specific acts charged in the indictment, to justify a conviction. It was sufficient to prove that he did any one of the acts constituting the offense. Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together, and charge the defendant to have committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others. (People v. Davis, 56 N. Y. 95 .) The question whether the proof established a wrongful receiving by Bork of the city and county hall bonds, as charged in the indictment, was fully

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argued by the respective counsel. We do not deem it necessary to determine this question. There is much plausibility in the suggestion that as the bonds were delivered to Bork by the' comptroller voluntarily, and according to .the established course in respect to the bonds of the city intended for negotiation, and without any request by Bork, or any fraud or artifice on his part to induce the delivery, he could not be deemed to have received or obtained them wrongfully. The fact that Bork was then a defaulter, and that he misappropriated a portion of the bonds soon after they came to his possession, is claimed, on the other hand, to furnish an inference that when he received them he intended to defraud the city, and that if such intention existed, he received them "wrongfully within the statute. Whatever may be the correct view of this question, it is unnecessary to decide, for the reason that assuming, as the defendant’s counsel contends, that Bork did not wrongfully receive or obtain the bonds, his subsequent delivery of the bonds to the broker in Hew York, for sale, accompanied with a direction to credit Lyon & Go. with the proceeds of sale of twelve of the bonds, was a clear conversion of these bonds, it being his intention, as the jury have found, to appropriate them to the use of his firm.

The bonds were delivered by the comptroller to Bork for a specific purpose, viz.: for sale in the city of Hew York for the city of Buffalo. The authority conferred doubtless included an authority to sell them through a broker, according to the custom. But the direction to sell the bonds for and on behalf of the city was inseparable from the authority to sell, and a sale for his own benefit was not a sale within the power. TTis direction to sell the bonds and credit the proceeds to Lyon & Co. was the exercise of a dominion over them, inconsistent with the right of the true owner, and was a conversion of the bonds. Whether the indictment charging Bork with the conversion of the proceeds might not have been sustained is not material. That the transaction may be treated as a conversion of the bonds is plain. The principle was decided in Com. v. Butterick ( 100 Mass. 1 ), where it was held that an

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indictment for the embezzlement of a promissory note, taken by the defendant to be discounted at a bank for another person, was supported by proof that the defendant procured the note to be discounted at the same bank, on his own account, and the proceeds placed to his own credit. We are, therefore, of opinion that the proof sustains the conviction on the merits, unless the learned counsel is right in the contention that assuming a conversion of the bonds, still the case is not within the statute.

Bork, at the time of this transaction, was treasurer of the city of Buffalo. It is insisted that he received the bonds by virtue of his office as treasurer, or, if not strictly as an official trust, at least as the servant or agent of the city, and that his conversion of them constituted the crime of embezzlement. (2 Bev. St. 678 , §§ 59, 60 ; Laws of 1874, chap. 207.) It is further claimed that the statute of 1875 was not intended to apply to the offense of embezzlement, already defined, and punishable by existing laws, but was intended to make something criminal which was not criminal before, and that this new offense, while neither larceny nor embezzlement, was something else of which the ingredient to defraud the public was the essential element, but which was not before the subject of indictment. This argument overlooks, we think, the purpose and language of the statute in question. We have no doubt that frauds by private persons, holding no fiduciary relations to the State, or a municipality, are within the purview of the act. But, we think, the act applies to cases within its general language, whether the offender is an officer, agent or servant, having the custody of the funds charged to have been misappropriated, or owing a special duty in relation thereto, or a private individual having no official or other confidential relation to the State or municipality defrauded by his act. It is a part of the public history of the time that when the act was passed public attention had been recently called to gross frauds committed by municipal officers, especially in the city of New York, in the abstraction, diversion and embezzlement of public funds and property. The malfeasance of officials in

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trusted with public means and property was the danger especially apprehended. Without their direct act or connivance it would be difficult to accomplish the frauds against which the statute was aimed. It was one of the purposes of the act, as the word peculation in the title indicates, and perhaps its primary purpose, to afford additional security against the betrayal of official trusts, by imposing severer punishment for embezzlements or other frauds when committed by public officers in misapplying public propérty, than was provided by existing laws. The language of the statute, defining who may be offenders, is as broad and comprehensive as possible. “Every person,” is the language used. The acts constituting the offense, include the wrongful paying out of public funds, and the willful paying, allowing or auditing an unjust claim, with intent to defraud. These particular acts could ordinarily only be committed by officers or agents having a duty to perform in respect to the public funds, or clothed with a public trust in the adjustment of claims. Moreover, the second section of the act is framed to meet the case of a wrongful transfer by public officers of deposits in banks, of any credit, claim, chose in action, or right or demand belonging to the public, by which the public right shall be defeated or impaired, and declares that such transfer shall be deemed a conversion within the act. And, finally, to put it beyond doubt that offenses punishable by existing laws were not excluded from the purview of the act, it is declared in the third section, that if on any trial (under the act) “ it shall appear that the acts of which the defendant was guilty constitute any other crime, he shall not by reason thereof be entitled to an acquittal; but after such trial and judgment he shall not be liable to prosecution for such other crime.” It was certainly competent for the legislature to provide, by an independent statute, that certain acts of embezzlement, punishable by the existing statutes, should constitute a distinct offense, and affix ■•a severer punishment than was provided by the general law relating to that class of offenses. The effect of the construction of the act of 1875, claimed by the defendant, viz.: that it applies to frauds by private persons only, would be to subject
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them to a much greater punishment than is visited upon faithless officials guilty of embezzlement, a crime of greater turpitude than the fraud of a private person, involving as it does, in addition to the element of fraud, a breach of public trust, and it is difficult to suppose that such discrimination was intended. We are of opinion, therefore, that, assuming that the facts proved constitute the crime of embezzlement, the indictment was properly framed and the conviction legally had, under the statute of 1875. It was unnecessary to aver in the indictment the fiduciary relation of the defendant. In an indictment for embezzlement, under the statute of embezzlement, such an averment is essential (Com. v. Simpson, 9 Met. 138 ), because the existence of that relation is an essential element of the crime. Under the statute of 1875 that is not the case, as the offense may be committed either by an officer, servant or agent, or by a person occupying no such position. The evidence that Bork was in fact treasurer was not, however, objectionable. It was one of the facts of the case, and tended to illustrate and explain other pertinent facts.

The further point was taken on the trial, and is urged on the appeal that the bonds, not having been issued when they were received by Bork, had no intrinsic value, and were not “ money, funds, credits or property ” of the city of Buffalo, within the descriptive words of the statute. It is incontestable that they did not become valid obligations of the city of Buffalo, until they had an inception by the transfer and sale. But they were, when received by Bork, complete in form and capable of becoming effective instruments by delivery to a bona fide holder. We think they were properly described as bonds in the indictment, and that they were, though unissued, property within the meaning of the statute of 1875. In People v. Wiley ( 3 Hill, 194 ) the indictment charged the receiving by the defendant of “ten promissory notes, usually called bank notes, of the value,” etc., knowing them to have been stolen. The proof was that the bills were stolen from the bank whose bills they were, and which though complete in form had never been issued. The court sustained the conviction. In

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Commonwealth v. Rand ( 7 Met. 475 ), the indictment was for the larceny of certain bank bills which had been redeemed by the bank and were in the hands of its agent at the time of the theft. The statute of Massachusetts specified bank bills as the subject of larceny, and the court held that the indictment was sufficient. The counsel for the defendant refers to the case of The People v. Loomis ( 4 Denio, 380 ) in which it was held that stealing a receipt from the hands of the party' whose act it is, it never having taken effect by delivery, is not larceny. The stealing of personal property, and not of personal goods, as, at common law, is by the Revised Statutes (2 Rev. St., 679, § 63) larceny, and the words personal property, as used in the chapter containing the section above referred to, are declared to mean “ goods, chattels, effects, evidence of rights in action, and all written instruments by which any pecuniary obligation, or any right or title of property, real or personal, should be created, acknowledged transferred, increased, defeated, discharged or diminished.” An unissued receipt is not within the descriptive terms of this statute, and if stolen from the person who signed it, it neither defeats, discharges, nor diminishes any right. The only possible consequence is to subject the party signing it to inconvenience, in showing the circumstances under which the possession was obtained, but this element does not make the transaction larceny within the statute. The learned judge who delivered the opinion in People v. Loomis justifies his conclusion, by reference to some early English cases, among others Walsh's case (R. & R. Cr. Cas. 215), which arose under Statute 2, George II, chapter 25, in which it was held that a check signed, but not delivered, while it remains in the hands of the owner, is not the subject of larceny. By that statute the stealing of certain written securities was made larceny, but the statute declared that the money due thereon, or secured thereby and remaining unsatisfied,” should be taken as the value of the securities stolen, and the court construed the statute as referring to securities which were valid outstanding securities, and which were therefore presumptively of the value of the sum expressed therein, which could not be true of unissued instruments. In
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the ease of Rex v. Metcalf (1 Moody’s Cr. Cas. 433), which arose under Statute 7 and 8, George IV, chapter 29 § 5 (which in describing the instruments which are subjects of larceny, uses very nearly the same language as Statute 2, George II), it appeared that the prisoner who was occasionally employed by the prosecutors, having received from them a check on their bankers, payable to a creditor for the purpose of giving it to the creditor, appropriated it to his own use, and it was held by the judges on a case reserved to be a larceny of the check. The same point was ruled in Reg. v. Heath (2 Moody’s Cr. Cas. 33). The case of People v. Loomis was clearly not a case of larceny within the Revised Statutes. It does not control the question now before us, which depends on the construction of the words “ money, funds, credits or property,” in the act of 1875. We think the cases of People v. Wiley, and Commonwealth v. Rand, supra, support the conclusion we have reached on this branch of the case.

There was no error in admitting in evidence the affidavit of Bork, made in January 1876. It tended strongly to establish his fraudulent purpose in directing the proceeds of the twelve bonds to be passed to the credit of Lyon & Go.

The point that the bonds were not averred in the indictment to have been held on behalf of “ any public or governmental interest,” is not tenable. The bonds of a city which can only be paid by taxation, if property in the corporation, under the statute of 1875, although unissued, as we have held, were public property, and were mainly held for a “ public or governmental interest,” whatever this somewhat obscure language may mean, and it was not necessary to aver what is necessarily implied, in the description in the indictment. So also it was unnecessary that the indictment should allege that the bonds were negotiable. This was -matter of description. The indictment alleges that the bonds were the property of the city, and if the truth of this averment depended upon their negotiable or non-negotiable character, the question could be made on the trial, and could not be raised by demurrer,, or on motion in arrest of judgment.

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We find no error in the record, and the conviction should therefore be affirmed.

All concur except Bapallo, J., absent.

Judgment affirmed.

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