People v. Colmey — 21 N.Y. Crim. 31

Majority

p. 31

SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT^[1]

Feb. 8, 1907.

THE PEOPLE v. CHARLES MURRAY COLMEY.

(117 App. Div. 462.)

Headnote

(1) . Grand Larceny—Obtaining Money upon Bond by False Representations—Evidence.

The defendant was indicted and convicted of grand larceny, first degree, in obtaining money by falsely representing that a certain bond upon which he obtained a loan was a subsisting and outstanding lien. Evidence considered and conviction sustained.

(2) . Same.

When, in addition to the misrepresentation as to the validity of the bond, the defendant also made false statements as to the existence of a trust company of which he claimed to be attorney and that the person who wished to borrow money on the bond was a wealthy man, when in fact he was a notorious criminal, such minor false representations, connected with the principal misrepresentation, are part of the res gestos and evidence thereof is admissible.

(3) . Same—Defendant Known Under Different Names.

Admission of evidence that the defendant was known by different names in various parts of the world and was under arrest at various times and was under requisition for extradition to another State is not error when shown to excuse the delay in bringing the defendant to trial. Said evidence is also admissible to identify the defendant and also to show flight from the scene of his crime in this State.

(4) . Same.

When the fact is admitted that the defendant received a check for twenty-five dollars for alleged services as an attorney in the transaction, the contents of the check may be shown without producing the instrument when the defendant is not indicted for receiving money on that check.

(5) . Same.

When the defendant under indictment is traveling under many aliases, a witness may state from what source he received his

p. 32

information as to the whereabouts of the defendant, even though the person who gave the information be not produced as a witness.

Appeal by the defendant, Charles Murray Colmey, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 26th day of February, 1906, convicting the defendant of the crime of grand larceny in the first degree, and also from an order denying the defendant’s motion for a new trial.

Clark L. Jordan, for the appellant.

JE. Crosby Kindleberger, Deputy Assistant District Attorney, for the respondent.

The defendant was indicted in January, 1902, charged with the crime of grand larceny in the first degree, in having obtained $600 from one James A. Smith by falsely representing that a certain bond of the Hew York and Hempstead Railroad Company, of the face value of $1,000, was a subsisting and outstanding first mortgage bond against said railroad not yet due, whereas, in fact, it was not outstanding and subsisting, but had been foreclosed and was of no value.

The trial was not had until January, 1906, and it resulting in a conviction as charged, the defendant appeals, alleging that the People failed to establish that any false representations were made by him, or that the bond was worthless, and that many errors prejudicial to him were committed in the course of his trial.

We think the People fully established that the defendant falsely represented that the bond was a valid and subsisting lien of the Hew York and Hempstead Railroad Company. The evidence shows that the defendant, calling himself Charles A. Moore, in company with a man who styled himself James

p. 33

W. Morgan, represented to the complainant that he was an attorney at law and acting for a corporation known as the Intérnational Trust Company, located on Liberty street in the city of ¡New York, which held the bond in question as security for a loan which it had made to Morgan of $600, and that Morgan, who was about to depart from the city of ¡¡New York, was fearful that during his absence the trust company would sell the bond, and, therefore, desired that complainant loan that amount, of money on it and hold it until Morgan could redeem it. The defendant had the bond in his possession, and stated to complainant that he had investigated the subject and knew that the bond was valid, and that the coupon for the last interest had only recently been cut off. To these representations the complainant replied that if the defendant was attorney for the company he would take him as his own attorney and rely upon his advice and pay him for it, and loan the money; and the next morning the defendant delivered the bond to the complainant and received from him therefor the sum of six hundred dollars, and in addition a check for twenty-five dollars for his services in the matter. The complainant testified that he relied upon these representations, and that he subsequently endeavored to find the International Trust Company but could discover no such corporation; and that he believed that Morgan was a man of wealth as he was represented to be. He subsequently learned through defendant’s admission, that his name was not Morgan but “ Jimmy McNally, the old green goods man.” The proof was ample too that the bond was worthless. The record on appeal contains a stipulation summarizing the exhibits introduced by the People, with respect to the foreclosure of the railroad mortgage, which shows that on July 19, 1875, in a foreclosure action brought by the Farmers’ Loan and Trust Company against the ¡New York and Hempstead ¡Railroad Company, a decree of foreclosure and sale was entered, foreclosing the mortgage given to secure the bond in question with others, and

p. 34

appointing a referee to sell the property covered by the mortgage. The referee reported that on the 23d day of September, 1815, he sold all the lands and premises mentioned in the mortgage and judgment for the sum of $100. Ho report of deficiency appears, nor does any order of confirmation of the sale appear to have been entered.

The particular bond in question was not proven before the referee, but two hundred and over of bonds of the same issue were proven on which default had been made in the payment of interest by the company. The defendant insists that the bond in question might be of some value because the mortgage covered rolling and other stock as well as real estate and rights of way, and only the mortgaged lands and premises were sold. It must be assumed that the judgment Was regularly obtained, and that the sale was properly conducted and that a sale having been had, all that the railroad company owned which was covered by the mortgage was included in the judgment and sold. The bond was, therefore, cut ofi by the foreclosure and was worthless, and the falsity of defendant’s representations in this respect was clearly established.

It is urged as error that the People were permitted to prove the falsity of various other representations, such as the nonexistence of the International Trust Company, and the attorney-ship of defendant for it, and that the man known as Morgan was not a wealthy man nor a horseman, as the defendant stated, but was a notorious criminal. All these minor false representations were connected with the principal false representation alleged in the indictment, and were made at the same time, and were simply false incidents surrounding the main false representation charged and relied upon. We think they were a part of the res gestee and that evidence concerning them was properly received.

It is also insisted that error was committed in allowing proof that the defendant was arrested or found under arrest, at vari

p. 35

ous times. Some of the occasions under which the witnesses speak of the defendant as under arrest, are mentioned manifestly as excuses for not then apprehending defendant and bringing him to trial on the present indictment. In one instance the defendant was under requisition to the State of Illinois under an indictment found in that State against him under another name than the one under which he was known to complainant; and another occasion relates to the time when he was finally apprehended, he then being in the custody of other officials.

The evidence respecting the different names under which defendant traveled and was known in various parts of the world, and the conditions of arrest and extradition under which he was found, we .think was competent not only for the purpose of identification but for the purpose of showing flight from the scene of his alleged crime in this State. ■ If any errors were committed in the development of these facts, they are not sufficiently grave to require a reversal of the conviction.

It is also claimed that evidence of the contents of the twenty-five dollar check which complainant gave to defendant for his alleged services' as attorney was permitted 4o be given without producing the check, which was accessible, because it was in the custody of the People. If error was committed in this respect, it was entirely harmless. The defendant was not indicted for receiving the money on that check, or obtaining the money which he did by it. Even if it might have shown on its face that the defendant was acting as attorney for the complainant, and that it was given in payment for his services as such, this fact was not disputed hut was admitted by the People. The fact that the defendant was acting as attorney for complainant Av0uld not relieve him from the consequences of his false representations and pretenses that he had investigated the validity of the bond and knew that it was an outstanding and

p. 36

subsisting obligation against the railroad company, and that interest had only recently been paid on it.

Nor was any reversible error committed with respect to the evidence of the witness Buchanan that he saw the defendant in Paris in the summer of 1902. It is insisted that the evidence of the witness McConville is based upon a portion of this evidence although it had been stricken out by the court. It was proper for McConville to state from what source he received his information as to the whereabouts of the defendant, even if the person who gave it to him had not been produced as a witness. The defendant was under indictment and was traveling under many aliases, and his apprehension under the present indictment was being sought. How he happened to escape apprehension for so long a time, and the efforts which were made to locate him, were proper facts to be developed upon the question of defendant’s flight, which, if established, was some evidence of his guilt. .

The defendant is plainly guilty, and we see no reason for disturbing his conviction, and it must be affirmed.

Patterson, P. J., Ingraham, McLaughlin and Lambert, JJ., concurred.

Judgment affirmed. Order filed.