People v. Tompkins

The defendant was convicted of the crime of grand larceny in the first degree, under an indictment charging the crime, first, by specifying in detail the trick, device or pretense by means of which it was consummated, and, second, in the usual common-law form. The substance of the allegation of the first count of the indictment is that the defendant, and others associated with him, induced one Felix to part with the sum of $50,000 upon the false representation that the defendant, as an employee of the Western Hnion Telegraph Company, had the means for obtaining advance information as to the result of certain horse races which were the subject of wagers or bets in so-called poolrooms, and that said Felix, relying upon these false representations, went to a poolroom recommended to him by the defendant, and there made a wager or bet upon a certain horse falsely named as the winner and thus lost his money. After the defendant’s conviction his counsel moved in arrest of judgment, and the motion was granted upon the ground, as stated by the learned trial court, that when a person is induced either by trick or device or false representations, to part with his property for an illegal purpose, no conviction can be had of the person charged with the crime, because that is the rule enunciated in McCord v. Peo

In a very able and elaborate argument the district attorney attacks the doctrine of the McCord case, the substance of which is above stated, as being contrary to the great weight of the decisions in the courts of our American commonwealths, and as inimical to the proper administration of our criminal law as applied to modern conditions. He contends that the doctrine of the McCord case rests upon the erroneous assumption, adopted in the earlier cases of People v. Clough ( 17 Wend. 351 ) and People v. Stetson ( 4 Barb. 151 ), that our statute relating to larceny by means of false pretense, trick or device, is regulated and limited by the recitals of the preamble to 30 Geo. 2, c. 124, which is the English statute from which our own was copied, to the effect that it is designed to reach the evil-disposed persons whose subtle stratagems, threats and devices have enabled them to obtain money, goods and merchandise “ to the great injury of industrious families and to the manifest prejudice of trade and credit

The learned district attorney is clearly right in his assertion that the law of this state, as enunciated in the cases of Clough, Stetson, and McCord, is at variance with the rule adopted by many other states in the Union. We are also impressed with the weight of the argument that in view of the constantly expanding ingenuity of intelligent criminals, which serves to render the administration of criminal justice more and more difficult, the law must be progressively practical in order to keep pace with the development of new forms of crime. But these arguments, impressive as they are, simply serve to suggest that it is the province of courts to give effect to existing rules of law and not to legislate. The law of this state, as set forth in the McCord case, has been in existence

We can, therefore, do no more, and we feel constrained to do no less, than to supplement the recommendation made to the legislature in the somewhat similar case of People v. Livingstone ( 47 App. Div. 284 ), where the Appellate Division of the second department, speaking through Judge Cullen, said: “ We venture to suggest that it might he wise for the legislature to alter the rule laid down in McCord v. People (supra). * * * If the rule as to larceny by false pretense and by trick or device were made the same as the common-law rule that stealing property from a thief is the same crime as stealing from the true owner, we think this class of cases might be

The order appealed from should be affirmed.

Cullen, Ch. J., Gray, Haight, Vann, Werner, Willard Bartlett and Hiscock, JJ., concur.

Order affirmed.