People v. Bretton

The defendant pleaded guilty to an indictment for grand larceny in the second degree, and now moves for arrest of judgment. The ground of the motion is that the facts charged do not constitute' a crime. The unusual procedure of making the motion in this court is explained by reference to People v. Bretton, 144 App. Div. 282 , 129 N. Y. Supp. 247 , and People v. Bretton, 141 N. Y. Supp. 4 (decided April 11, 1913).

The defendant by his plea of guilty admitted that, with intent to deprive and defraud Matilda Raoux of her property, and to appropriate the same to his use or that of some other unknown, he did feloniously, fraudulently, and falsely represent and state to said Raoux, in answer to an advertisement requesting the services of a governess, that he was authorized by his sister, represented to be a resident of Florida and in need of the services of a governess, that he would engage the said Raoux as such governess at $50 per month on condition that Raoux would advance $50 to him to pay for her ticket to the place of "the residence of his alleged sister in the said state of Florida; that all of these representations and statements were false and untrue, and so known by defendant at the time of their making, and “by color and aid” of these false and fraudulent statements, advertisement, and representations, which the said Raoux believed, and upon which she then and there relied, the defendant obtained, feloniously and fraudulently, the said $50 from Raoux.

The point made by the defendant is that the statements were promissory in their nature, and hence no indictment would lie, under the familiar rule. See People v. Miller, 169 N. Y. at page 351, 62 N. E. 418 , 88 Am. St. Rep. 546 . But the promissory representation that the defendant would engage Raoux as a governess for his sister was accompanied by a statement of existing facts, namely, that defendant’s sister then resided in Florida and then needed the services of a governess. This case, then, is within the principles of Thomas v. People, 34 N. Y. 351 , recognized and approved in People v. Rothstein, 180 N. Y. at page 151, 72 N. E. 999 , 1 Ann. Cas. 978, of Watson v. People of the State of New York, 87 N. Y. at page 567, 41 Am. Rep. 397 , and of People v. Jeffery, 82 Hun, 409 , 31 N. Y. Supp. 267 . See, too, Bishop on New Criminal Law, vol. 2, §§ 419-427, inclusive.

We are cited, however, to Ranney v. People, 22 N. Y. 413 . The facts in that case are similar somewhat to those in the case at bar. Ranney promised Hock employment if Hock would deposit $100 as security, and there was a statement that the defendant had employment which he could give to Hock; but the court, per Comstock, J., commented that “this was obviously of no importance without the contract which was made.” The doctrine of Ranney’s Case has not escaped criticism. See People v. Winslow, 39 Mich. 505 , per Cooley, J.; Bishop’s New Criminal Law, vol. 2, § 427; Clark and Marshall, Law of Crimes (2d Ed.) p. 532, notes; Notes of Commissioners David Dudley Field, William Curtis Noyes, and Alexander W. Bradford, in the Penal Code of the State of New York, reported complete by the Commissioners of the Code, 1865, page 223; Bishop’s New Criminal Law, supra. But Ranney’s Case is not an authority in the case at