People v. Noblett — 18 N.Y. Crim. 476

Majority

p. 476

Supreme Court, Appellate Di?ision, First Department.

June, 1904.

THE PEOPLE v. E. ARDEN NOBLETT.

(96 App. Div. 293.)

Headnote

1. Grand Larceny—Trial—Evidence—False ■ Representation— Proof of Similar Transactions with Others When Proper.

An indictment for grand larceny charged that defendant to induce one W. to purchase an interest in his business, falsely and

p. 477

fraudulently represented that the net profits of the business during a certain year had been upward of $40,000 and that a written statement which he then and there produced was a correct account of the business for that time; that he was worth $200,000 etc., that W. in reliance upon these representations and in the belief that they were true, paid the defendant $10,000 for an interest in the business. Held that it was proper for the court to permit several witnesses to testify that defendant had obtained money from each of them, during said year by making similar representations to them as to the profits of the business, as this testimony was admissible as showing that the statement exhibited to W. was false'as it included the money obtained from these persons.

2. Same—Charge as to Motive.

That the court properly refused to charge that “In estimating the value of the testimony of W. they should consider that he has a motive to testify—a strong motive, in that he has a civil suit—two civil suits—pending against the defendant in which he will probably be a witness and the defendant will also be a witness.’’

Appeal by the defendant, E. Arden Noblett, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered on the 28th day of January, 1901, convicting the defendant of the crime of grand larceny in the first degree.

G. W. Hurlburt, for the appellant.

Howard S. Gans, for the respondent.

The defendant appeals from a judgment convicting him of the crime of grand larceny in the first degree. The indictment upon which the conviction was obtained charged, in substance, that for the purpose of inducing one Watson to purchase a half interest in the defendant’s business he false

p. 478

ly and fraudulently represented that he then was and for more than a year prior thereto had been engaged in business as a banker and broker, dealing in investment securities, stocks, bonds, real estate, etc., the net profits of which during the year 1898 had been upwards of $40,000, and that a written statement which he then and there produced was a correct account of the receipts and disbursements of such business for that time; that he was then worth $200,000 over and above all debts and liabilities, and that he had never had a judgment against him in his life; that Watson, relying upon these representations and believing them to be true, purchased a half interest in said business, paying $10,000 therefor.

The evidence adduced at the trial was sufficient to justify the jury in finding that the defendant was guilty of the crime charged in the indictment, but it is claimed that errors were committed upon the trial which necessitate a reversal of the judgment. What is claimed in this respect is that the court erred in permitting testimony to be received, against the defendant’s objection, to the effect that he had obtained money during the year preceding the time Watson was induced to purchase a half interest in his business from other persons by making similar representations to them as to the profits of his business or other false statements, and also that the trial judge erred in refusing to instruct the jury as requested.

First. We do not think the court erred in admitting the testimony of which the defendant’s counsel complains. In the brief presented by him it is urged that error was committed in permitting Karl L. Oliver, Edward S. Pratt, Robert B. McCormick and John Watson to testify as to the transactions had with them respectively by which the defendant obtained $3,000 from Oliver; $7,500 from Pratt; $1,-000 from McCormick and $5,000 from Watson. The testimony of these witnesses was admissible if not for the pur—

p. 479

pose of showing similar transactions, then certainly as showing that the statement which the defendant exhibited to Watson and which he said represented the profits of his business, was false because there was included therein all or some portion of the money obtained from each of these persons. The same is equally true as to the testimony showing the amount which he received from Serafian and De Cllappelles. The testimony as to these transactions tended to show either that the statement referred to was false, or else ■that the defendant’s statement as to his financial ability was false.

The defendant’s counsel also alleges that error was committed in permitting the People to show that the defendant obtained $7,000 in money from the complaining witness subsequent to the alleged commission of the crime charged in the indictment, but he overlooks the fact that the first testimony bearing on this subject was called out on cross-examination of the complaining witness and the other testimony relating thereto was a proper subject of re-examination.

Second. The court did not err in refusing to charge the jury that, “In estimating the value of the testimony of Watson—Edward H. Watson—they should consider that he has a motive to testify; a strong motive, in that he has a civil suit—two civil suits—pending against the defendant in which he will probably be a witness and the defendant will be also a witness.” It will be observed that the request is not to charge that the witness had a strong motive to testify untruly or adversely but that he had a strong motive to testify—whatever this may mean. But if it be assumed that it was to testify untruly or adversely to the defendant, the request was bad because the court could not, as a matter of law, instruct the jury that he had a strong motive, nor could it be assumed that the defendant would be a witness in the civil actions. Not only this, but the court had in the

p. 480

main charge correctly charged the jury upon the subject.

The defendant had a fair trial, the evidence justified a. verdict of guilty, and after a consideration of the record, we do not find any errors which call for a reversal of the judgment.

The judgment appealed from, therefore, must be affirmed.

Van Brunt, P. J,, O’Brien, Hatch and Laughlin, JJ., concurred.

Judgment affirmed.