People v. Walker — 17 N.Y. Crim. 318

Majority

p. 318

Court of General Sessions—New York County.

April, 1903.

THE PEOPLE v. CHAUNCEY W. WALKER

(40 Misc. 521.)

Headnote

New Trial—Newly Discovered Evidence.

. Newly discovered evidence as to the. good character of the defendant is not a sufficient ground for granting a new trial. . .

Defendant claimed to be the agent for an Illinois company engaged in the business of examining insurance policies and reporting to clients on the standing of insurance companies and as to the form and sufficiency of policies issued. He claimed also to have exclusive territorial rights in Hew York and Hew England as such agent. He sold to the complainant a territorial .right "for the State of Hew York upon assurances that it was “ virgin, territory ” and had not been sold to other parties, but should he the exclusive territory of the complainant. . It was maintained upon the trial and found by the jury that these répresentations were false and fraudulent, inasmuch as the territorial right for the State of Hew York had been sold to other parties prior to the sale to the complainant. A motion for a new trial and to set aside the .verdict was denied.

Reargument and reconsideration was asked for on the. ground of newly-discovered .evidence, consisting chiefly of testimony as to the character of the defendant and the company employing him.

William Travers Jerome, District Attorney (Robert C. Taylor, Assistant District Attorney, of counsel), for People.

Charles E. LeBarbier, for defendant.

This is a motion “for a'reargument and reconsideration of the motions heretofore made by the defendant for a hew trial and in arrest of judgment, and to set aside the verdict of the jury, and for a new trial upon the ground of newly-discovered evidence.”

The defendant was convicted of grand larceny in the second degree for obtaining a: certain sum. of money from the complaining witness on the false and fraudulent representation that cértain territorial rights which he, as agent of a. company known as the Policy Holders’ National Union of Chicago, was authorized to sell and dispose of, represented “virgin territory ” and had not been sold and would not be sold to' any other parties, but that the complainant should have the exclusive privilege of representing and acting' for said company in said territory under the conditions of a. contract mutually signed. It was contended by the People and found by the jury that these representations' were false and fraudulent, inasmuch as the said territory had been previously disposed, of, not. once, but several times.

The motion being made after judgment, it is only necessary to consider the last clause of the defendant’s request. (Code Cr. Pro., secs. 443, 446.)

After the trial application was made to the Supreme Court in another department for a. certificate of reasonable doubt, which was denied by Maddox, J. This was done presumably after full consideration of the case and the evidence presented, and after hearing argument of counsel thereon. If, therefore, it were proper on this motion to go into the ease itself either to discover error in law or insufficiency of evidence, this decision of Justice Maddox on the question of reasonable doubt would seem to make it unnecessary.

The bulk of the moving papers consists of affidavits as to the good character, not only óf the defendant, but of the company whose agent hie professed to be." Much’ of this would have been "excluded if offered at the trial, because it relates to specific' acta

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of 'honesty and is. no sufficient or competent proof of general reputation.. • .

The two- principal affidavits, aside from, that of the defend;ant himself, are made by parties who were witnesses on the trial (by commission), and who were officers of the company for which the defendant claimed to- act. It appears from the papers submitted by the People against .this motion that these two witnesses, one being, a brother of the defendant, are both under indictments for similar offenses in Chicago-. While evir deuce of this fact would n-ot have been admissible upon the trial, it may fairly be considered in the decision of the pending motion.

A large portion of the papers submitted by the defendant relates to the good character of the co-mp-any itself. This was never an issue in the case, and if evidence of this kind had been offered at the trial it would have been excluded. In fact, if the company had been engaged in a legitimate business, with-valuable rights to- sell, and if the defendant had s-o-ld these rights fraudulently and by false pretenses-, it is no- extenuar lion of his guilt, but rather an aggravation, because it gave -him the better basis for deceiving his victim. ■

In the case of Kring v. N. Y. C. & H. R. R. R. Co., 45 App. Div. 378 , the court says:

“ The rule which should govern in considering- a motion of this kind is well settled. It must appear that the evidence has been discovered since the trial; that it could not- have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to the issue and goes to the merits of the case; that it is not merely cumulative, and that its character is such, that it wo-uld probably have changed the result.”

The defendant in bis moving papers does not meet any single one of -these conditions. . - ’

. Good character is not an excuse for crime, nor a license to -commit it; and proof thereof is only useful and competent as enabling á jury to- come-to a just conclusion as to whether -the

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defendant committed the act which constitutes the crime, and with guilty intent. There may he cases where such proof would, of itself, create such reasonable doubt as would call for an acquittal.

The motion is denied.

Motion denied.