People v. Birnbaum

The defendant is an attorney and counselor at law, having been admitted to practice in the year 1900. The indictment, in two counts, charged the defendant with grand larceny in the first degree, in that he had in his possession, custody and control, as agent, bailee and attorney, the sum of $550 belonging to one Harriet Coleman, a client of his, and appropriated the same to his own use, with intent to deprive and defraud her thereof. The first count was withdrawn and he was convicted of the lesser degree under the second count.

The defendant was employed by the complainant to prosecute a claim for damages for personal injuries sustained by her against the Metropolitan Street Railway Company. On the 2d day of April, 1901, the client and attorney made an agreement in writing with respect to his employment and compensation, which, so far as material, provided as follows: “ I, Harriet Coleman * * * do hereby agree to give J. Birnbaum the exclusive right (and) power to prosecute my said claim for damages, and the said J. M. Birnbaum hereby agrees to give me 50% of the net proceeds recovered, and I hereby agree with the said J. M. Birnbaum that he shall retain 50% of the net proceeds recovered, together with the costs and the counsel fees of the action as allowed by the defendant and the Court; said costs (and) counsel fees to be paid by the defendant only and not by the injured party. Ho settlement of this case to be made in or out of court without the consent of both parties hereto.”

The action was brought, and upon the first trial a verdict was rendered in favor of the plaintiff for $1,925. The judgment entered upon the verdict was reversed upon appeal and

The People gave evidence tending to show, and sufficient to warrant the jury in finding, that the defendant represented to his client that he had only received in settlement of the judgment the sum of $1,300; that he represented that there was a large amount of disbursements, one-half of which she should bear, and that he deducted from her share the sum of $200 on account of disbursements. Although the complainant does not admit that she consented to the deduction of $200 from her share on account of disbursements, or her liability for disbursements to that extent, yet the prosecution proceeded upon the assumption that the deduction of $200 was proper, and the defendant has only been charged with misappropriating her remaining share. The indictment was found upon the theory that the complainant was entitled to one-half of the amount received from the railway company without any deduction, but the nature of the evidence with respect to the deduction of $200 from her share on account of disbursements was such that the jury doubtless took the view that she acquiesced in or had knowledge of that deduction, and hence the defendant was not convicted of larceny in the first degree.

The defendant testified in his own behalf. His evidence,

There was evidence upon which the jury were warranted in finding that the settlement with the company was negotiated upon the basis that the company should pay the amount of the verdict, exclusive of the costs included in the judgment, and that the costs were waived. Host of the evidence given upon the trial was upon these issues with respect to the basis of the settlement with the railroad company and the basis of the settlement between the defendant and his client. The evidence fairly warranted the jury in finding that the defendant did not learn until after she made the settlement with the defendant that he had received $2,000 from the railroad company, and that she settled with her attorney, relying upon his representations that he only received $1,300 from the company.

The record does not disclose the state of the defendant’s bank account at the time he deposited the $2,000 therein, or at the time he gave his client the $450 in full settlement of her share, but it appears that on the day of the date of the check from the railway company his bank account was good for more than $550.

Upon the trial, one Nickel, a voucher clerk for the street railway company, testified that he negotiated for the company the settlement of the case with the defendant by telephone, and that the defendant agreed to waive the costs included in the judgment and to settle for $2,000, the amount of the verdict. The defendant was sworn before Nickel testified and did not again take the stand to deny that Nickel negotiated the settlement with him or that he was not in the city at the time, and he admitted that he negotiated the settlement with the company in part, at least, by telephone, but, as already, stated, claims that nothing was said with respect to waiving the costs. He claims to have discovered since the trial evidence that hs was not in the city at the time Nickel claims to have negotiated the settlement with him. It is manifest that by the exercise of due diligence, that evidence should have been discovered during the trial.

The defendant testified that his client at the time of the settlement executed a general release, which, it appears by other evidence, contained a recital that the settlement was made for $2,000. She denied executing a release and it was shown that the company did not receive it, and that it was its practice, where a judgment had been recovered, to take a satisfaction of the judgment, and not to require a release. The defendant now shows that one Julian, formerly a claim agent of the company but now out of its employ, informed him that the release executed by his client was in existence, and that she and her

The defendant also presents an affidavit of one Victor, who was a clerk in his office, to the effect that at the time the complainant’s husband executed a release of his claim against the company for loss of her services, which was required by the company as a condition of the settlement, he took her acknowledgment to the execution of a general release reciting that the settlement was for $2,000, and read it over to her. The defendant claims that this witness was under a subpoena and in court at the time of the trial to testify to these facts but was not present when called. The attention of the court was not specifically called to the importance of having this testimony, and no attachment or adjournment was asked on account of the absence of the witness.

The defendant testified, among other things, that while absent from the city he learned through his sister that a warrant for his arrest had been issued on this charge; that he understood that the street railway company instigated it and that he remained away about three and a half months, at the suggestion of his relatives and against his own judgment; that the company was hostile to him because he had a very large amount of litigation against it, and that its employees had threatened to make trouble for him. On his cross-examination, the district attorney, with a view to refuting the defendant’s claim as to the basis of the unfriendliness of the street railway company toward him, sought to show that the attention of the street railway company was drawn to him by an inquiry of Mrs. Ziegler, one of his clients, with respect to the amount paid on a settlement of her judgment. This he denied. The evidence that he had a client by that name was received over his objection and exception. The inquiry into the matter was abandoned, however, after a few questions which elicited no

The defendant also shows facts which he claims tend to indicate that the district attorney and his assistants are prejudiced against him, but that, if true, would be no ground for a new trial, and it does not appear that he has been prejudiced by the attitude of the prosecution.

The remaining facts presented upon the motion for a new trial tend to contradict the testimony given by the complainant, her son and daughter, who were witnesses for the People, and tend to show that the complainant suborned a witness. The material facts are denied by them, and other facts are presented tending to impeach this newly-discovered evidence. Other irrelevant and immaterial facts are shown. The alleged newly-discovered evidence is largely cumulative, hearsay and not convincing. It is entirely improbable that it would change the result if a new trial were ordered. The motion for a new trial was, therefore, properly denied.

The appellant presents a serious point upon the merits. He contends that the defendant’s client did not own any specific part of the moneys received from the railroad company, and that if she did, it has not been shown that he has either converted or misappropriated it. It is claimed that the agreement between the attorney and client constituted an equitable assignment of one-half the proceeds of the cause of action, and that, therefore, the defendant and his client were co-owners of this fund, and he cites as authority for this proposition the case of Fairbanks v. Sargent, ( 117 N. Y. 320 ), which so holds. It does not follow, however, that merely because the attorney and client each had an equal undivided interest in the fund, the duties and obligations of the defendant as attorney terminated.

Section 528 of the Penal Code provides, among other things, as follows: “ A person who, with the intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, either * * * 2. Having in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature or thing in action or possession, appropriates the same to his own use or that of any other person other than the true owner or person entitled to the benefit thereof: Steals such property and is guilty of larceny.”

It is quite clear, I think, that, if it appeared that the defendant checked out the balance of this account and used it in the payment of his individual obligations, he would be guilty of a violation of subdivision 2 of the section of the Penal Code herein quoted. The serious question arises as to whether the People have sufficiently shown that the defendant has appropriated his client’s shares of this money to his own use. His intent to defraud and deprive her of the use and benefit of the property is clearly established. There could have been no other object in concealing from her the true amount he received in settlement of her case. The client, as she had a right to do, relied implicitly upon the representations of her attorney as to the amount of the settlement. (Wheaton v. Newcombe, 48 N. Y. Super. Ct. 215 .) It is clear that if he held

The many other questions urged upon the appeal and in the points have been considered, but we are of opinion that there was no error prejudicial to the rights of the defendant, although one of the questions presented requires consideration.

The defendant called seven witnesses who testified to his previous good reputation and character. Before the court

The court also charged the 30th request as follows: “I request your Honor to charge the jury that evidence of good character is not only of value in doubtful eases, but also when the testimony tends very strongly to establish the guilt of the accused, it will sometimes of itself create a reasonable doubt when, without it, none would exist.”

The court then read the 31st request to the jury, as follows: “ I ask your Honor to charge the jury that the character of the accused may be such as to create a reasonable doubt in the minds of the jury and lead them to believe, in view of the improbability of a person of such character being guilty, that the other evidence is false.” And then said: “ Except as I have already charged on that point, I decline to charge that request, and I will give you an exception.”

In the main charge subsequently delivered, the court again alluded to the character evidence, and instructed the jury as follows: “ How, I come to another phase of the case, as to which I have already charged, but which I will embody in my

Every man brought to this bar is presumed to have a reasonably good character. He starts out with that presumption. But juries must never understand that reputation or character justifies the commission of a crime. The good and the bad must obey the law just the same. But evidence of good character and good reputation is legal evidence, and the Court of Appeals has said, and I so charge you, that evidence of good reputation and of good character will, of itself, sometimes create a reasonable doubt, where otherwise there would be none. I have already charged you that, I think, but if I have not, I charge that now.”

Ho further request was made on the subject of the character evidence. It is to be borne in mind that the request on this subject which the court declined to charge further than as already charged, was made and declined before the delivery of the main charge in which the court subsequently instructed the jury quite fully. Upwards of sixty requests in writing to charge were presented to the court. Counsel for the defendant should have embraced in one request all the instructions that were deemed necessary to enable the jury to weigh and apply the character evidence. By requesting the court to charge on this subject piecemeal, doubtless the court was misled into thinking that the charge requested was merely a reiteration of what had been

Trial courts should always be careful to instruct the jury in criminal cases where evidence of previous good character of the defendant is presented, either literally or substantially according to the rule laid down by the Court of Appeals in Remsen v. People ( 43 N. Y. 8 ). That rule has been often reiterated by that court and by the Appellate Division. (People v. Elliott, 163 N. Y. 11 ; People v. Bonier, 179 id. 315, 18 N. Y. Crim. 516 ; People v. Childs, 90 App. Div. 58 , 18 N. Y. Crim. 114 .)

In the case at bar, however, although the court did not specifically draw the attention of the jury to the point that evidence of good character may alone be sufficient to justify the jury in disbelieving the evidence of guilt presented by the People, yet the court did very fully instruct the jury, both in answer to requests presented by the defendant and in the charge, that the evidence of good character might justify them in entertaining a reasonable doubt of the guilt of the accused, and it is highly improbable that the jury would not understand therefrom that such evidence of good character might warrant them in disbelieving the incriminating evidence. The guilt of the defendant, as we interpret the law, was clearly and satisfactorily shown, and we think he was not prejudiced by the failure of the court to further instruct the jury with respect to the weight that might be given to the evidence of previous good character.

It follows that the judgment should be affirmed.

0’Bb.ien, P. J., McLaughlin, Claeke and Houghton, JJ., concurred.

Judgment affirmed. Order filed.