People ex rel. Perkins v. Moss

An information was laid before Joseph F. Moss, one of the city magistrates, who proceeded to take the depositions of the witnesses produced, from which the following facts appeared: That the New York Life Insurance Company is a domestic corporation, of which John A. McCall was president, and the relator, George W. Perkins, vice president. That in November, 1904, there was an election for President of the United States, and Mr. Cornelius N. Bliss was the treasurer of the Republican National Committee. That Mr. Bliss came to the relator and informed him that Mr. McCall, the president of the New York Life Insurance Company, had promised him that the corporation would contribute the sum of $50,000, or so much thereof as might be necessary for the purposes of the national campaign, and had requested Mr. Bliss to see the relator in reference thereto. That, at a subsequent interview with Mr. McCall, he informed the relator that demands were being made upon him for political contributions by the company, which it did not seem to him it would be for the interest of the company to make. ' That it would make it easier

. Upon this appeal, the only question that has been argued is whether on these facts the relator was guilty of a crime. In the discussion of

Under sections 148 and 149 of the Code of Criminal Procedure, when an information is laid before a magistrate, charging the commission of a crime, he must examine on oath the witnesses produced, whose depositions must set forth the facts stated by the prosecutor and his witnesses tending to establish the commission of a crime and the guilt of the defendant; and section 150 provides that, if the magistrate is satisfied therefrom that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest. If, upon the facts stated in the depositions, no crime has been committed, or there is not reasonable ground to believe that the defendant has committed it, the warrant is improperly issued, and the defendant cannot be held under it. Hewitt v. Newburger, 141 N. Y. 538 , 36 N. E. 593 .

The crime charged is grand larceny, under section 538 of the Penal Code. That section provides:

“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, * * * 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.”

Arid as bearing upon the construction to be given to section 538, section 548 provides that:

“Upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable.”

It is evident that there are two essential elements which must appear to justify a conviction for this crime: First, it must appear that the person charged intended 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, and that the property was not appropriated openfy and avowedly under a claim of title, preferred in good faith, even though such claim is untenable; and, second, it must appear that the person charged with the crime had in his possession, custody, or control, as bailee, servant, attorney, agent, clerk, trustee, or officer of a person, association, or corporation, the money or property appropriated. Bearing in mind these two necessary elements, the question presented is, whether the deposition taken before the magistrate justified him in issuing a warrant againsl the relator.

The act of the president of this corporation in making a contribution to one of the political parties of the United States, to-aid in the election of its candidate for President, is the act which it is claimed was

“Undoubtedly such engagements may have the vices which sometimes infect the contracts of individuals. They may involve a malum in se or a malum prohibitum, and may be void for any cause which would avoid the contract of a natural person. But where no such vices exist, and the only defect is one of power, the contract cannot be void because it is illegal or immoral.”

And the learned court then cites as an example the act of a bank making a contribution for charity, with no authority to engage in benevolent enterprises, and says:

“A subscription made by authority of the board of directors, and under the corporate seal for the building of a church or college or an almshouse, would be clearly ultra vires, but it would not be illegal.”

And, after other illustrations of the same character, continues:

“To apply the word ‘illegality’ to such transactions is to confound things of a totally different nature. It is only private interests which are affected by them, and there is no statute or rule of the common law by which they become public offenses.”

This case has been followed by Bath Gaslight Co. v. Claffy, 151 N. Y. 24 , 45 N. E. 390 , 36 L. R. A. 664 ; Moss v. Cohen, 158 N. Y. 240 , 53 N. E. 8 ; and Holmes v. Willard, 125 N. Y. 75 , 25 N. E. 1083 , 11 L. R. A. 170 .

There was no evidence before the magistrate that this corporation had not authorized the contribution. The only evidence on the subject was the deposition of the secretary of the corporation that “for many years the president of the corporation had exercised the power of ordering disbursements out of the company’s funds upon his sole personal authority, and, as far as I am aware, his right to do this had never been challenged”; and of the treasurer of the corporation that “said McCall, by virtue of his office, had power to make disbursements known as disbursements upon executive order.” It cannot, I think, be disputed but that this act of making such a contribution to one of the political parties, not being prohibited by law, would have been perfectly lawful if made by an individual. No law and no declared public policy prohibits the making of contributions to political parties, except for certain specified purposes stated in section 41n of the Penal Code. That being so, it follows that, if the corporation had made this contribution, the illustration of Judge Comstock in Bissell v. M. S., etc., Railroad, supra, would apply—that “to apply the word ‘illegality’ to such transactions, is to confound things of a totally different nature.

The relator, however, was not the officer who made the contribution. The president of the company, having the power, according to the evidence, to order disbursements out of the company’s funds, his right to do so never having been challenged, informed a subordinate officer of the company (the relator) that he had made an arrangement to make this contribution on behalf of the company, and requested the relator to make such a contribution out of his own funds, for which he was to be reimbursed by the company. Acting under this authority, the relator paid the money to carry out the obligation assumed by the president on behalf of the company. There -is no allegation that the relator had any knowledge that the president was not authorized by the corporation to make this contribution. There is no act proved to justify the inference that the relator had any knowledge that the president of the company was acting without lawful authority to make the contribution; no allegation that the president of the company had any intent to deprive this corporation of its money for the use of the relator, or for any other purpose; and no allegation and no fact alleged to justify an inference that in carrying out this transaction, at the request of the president of the corporation, the relator had any intent to defraud the company, or to deprive it of its property, or to violate the law.

To one of the depositions upon which this warrant was granted there is a letter of the relator to- the district attorney, stating his connection with the transaction, in which he says:

“When I made the advances abox'e mentioned, and when I was reimbursed-therefor, it never occurred to me that there could be any question as to the propriety of such expenditure, which I believed to be for the benefit of the company.”

This admission of the relator being used as an admission, there being no fact alleged to justify the inference that the relator had a criminal intent in carrying out, on behalf of the company, the obligation which had been entered into by its president, there was no charge of a criminal intent; the only evidence being that the relator acted in good faith. Nor is there an allegation that the relator had the possession of or the control over the money of the corporation, or that the money he received was “in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer” of the corporation, or that he appropriated any money of the corporation which was in his possession or under his control. The president of the corporation, having incurred on its behalf a liability to repay this money to the relator, at a meeting of the finance committee of, which the relator and the president

Upon the argument it was claimed by the learned district attorney that the crime for which the relator was sought to be held was committed when he received from the corporation the money to reimburse him for the claim that he had against the corporation, based upon the payment of his own money to fulfill an obligation incurred by the president of the corporation on its behalf. But the relator had paid his money on behalf of the obligation entered into by the president of the corporation on its behalf. He certainly was entitled to claim that he should be reimbursed this money, and the receipt of the money of the corporation in payment of this claim, whether well founded or not, is, by the provision of section 548 of the Penal Code, a sufficient defense to the charge. It is, however, I think, a complete answer to this claim that the money which was received by the relator was not money that he had in his “possession, custody, or control” as a bailee, servant, attorney, agent, clerk, trustee, or officer of the corporation. At no time did this relator appropriate any money of the corporation which was in his possession, custody, or control as its officer or trustee.

It is claimed, however, that as this money was in the possession, custody, or control of McCall as president of the company, and as McCall’s intention was to make this political contribution, which was an appropriation of the property of the company for the use of a person other than the true owner, and as the relator aided and abetted in the appropriation of the money, he was a principal, under section 29 of the Penal Code. That section provides:

“A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, is a principal.”

But, as before stated, the evidence before the magistrate was not sufficient to prove that McCall had committed a crime. But assuming that McCall made this arrangement for the contribution without authority from the corporation, the evidence does not establish that the

In Bouvier’s Law Dictionary, "aiding and abetting” is said to be “the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator thereof. A principal in the second degree is he who is present aiding and abetting the fact to be done. Actual presence is not necessary. It is sufficient to be so situated as to come readily to the assistance of his fellows.” It is stated generally in 1 Amer. & Eng. Enc. of Law, p. 264, that, “in order that a person may be guilty as an accessory before the fact, it is necessary, first, that he should have shared the criminal or mischievous design of the principal felon, and, ■ second, that that design should have been substantially effected through his incitement thereto”; and, at page 265, “the guilt of an accessory before the fact consists in his having incited to a crime afterwards accomplished.” As I understand it, the essential element in aiding and abetting in the commission of a crime is taking an active part with a criminal intent to commit the crime. Certainly the act of the officers and employés of this corporation, in obeying the order of the president and preparing and delivering the check in repayment of money advanced by the relator, was not aiding and abetting in the commission of a crime. In People v. Peckens, 153 N. Y. 585 , 47 N. E. 883 , in speaking of section 29 of the Penal Code, it is said:

“It is expressly provided by statute that a person who advises or procures the commission of a crime may be indicted and convicted thereof, although he was .absent when it was committed. Pen. Code, § 29. Indeed, such was the law as it previously existed; the general rule being that what one does or procures to be done through the agency of another is to be regarded as done by him.”

It was McCall who appropriated the money of the corporation; and the officers or employés of the company who obeyed his direction in making that payment, without intent to do more than carry out the instructions of the president of the corporation, were not, as I view it, responsible for the act.

I think, therefore, that it does not appear from these depositions before the magistrate that a crime had been committed, or that there was reasonable ground to believe that the defendant was guilty thereof; and the order appealed from should be reversed, and the relator discharged.

Larceny, as defined in section 528 of the Penal Code, includes every act which was larceny at common law, and in addition such acts as formerly constituted false pretenses and embezzlement. People v. Miller, 169 N. Y. 350 , 62 N.

If the facts set out in the depositions upon which the warrant here was issued be construed in the most liberal way consistent with a judicial determination, I am of the opinion that such facts do not establish that the crime of grand larceny has been committed, as the same is defined by the Penal Code.

First. Such facts certainly do not establish larceny as defined by the common law. The defendant had a right to give of his own funds to the chairman of the Republican National Committee. There was no statute prohibiting such contribution, and such act was not, in and of itself, a crime. The relator made the contribution at the request of the president of the insurance company, with the express understanding that it would repay him. Having made the contribution, relying upon this understanding, he then had a claim against the insurance company for the amount advanced, and it is entirely immaterial, so far as the question here presented is concerned, whether or not such claim could have been enforced in a civil action. The claim existed, and if, in satisfaction of it, the defendant received from the insurance com

In McCourt v. People, 64 N. Y. 583 , the plaintiff in error stopped at the house of the prosecuting witness and asked his daughter, who was alone at the time, for a drink of cider. She refused to let him •have it, and he thereupon opened the cellar door, went into the cellar, although forbidden by her to do so, and carried away a pail of cider. He was subsequently indicted, tried, and convicted for burglary and larceny. On appeal the judgment of conviction was reversed; the court holding that the evidence failed to show that the accused entered the cellar with intent to commit a crime, and, while there was evidence of an intent to obtain a drink of cider, and thus deprive the owner of his property, there was an absence of the circumstances ordinarily attending the commission of a larceny and which distinguished it from a trespass, and all of the circumstances were consistent with the view that the transaction was a trespass merely.

In People v. Woodward, 31 Hun, 57 , the defendant was found guilty of grand larceny in stealing a horse from the owner’s stable and then killing it. At the conclusion of the trial the court was asked to instruct the jury that:

“If before the taking of the horse the intent was to take it and kill it, the crime would not be felony but an offense under the statute called ‘Mis-; demeanors,’ under the term ‘Malicious Mischief.’ ”

Second. Nor did he obtain possession of the money by false pretenses. It was not only voluntarily given to him by the president of the insurance company, but it was received openly and avowedly to reimburse him for what he had, previously advanced. The case is devoid of every element from which it could be claimed possession was obtained by false representation.

Third. The only remaining inquiry, then, is: Was the money received in trust and thereafter converted to his own use ? To this question it seems'to me there can be but one answer. It was not received in trust. On the contrary, it was received to satisfy the relator’s claim. But it is urged by the people that the relator was vice president of the insurance company, was chairman of the finance committee, and as such was charged in law with the custody of the company’s property, for which reason it was his duty, when the same was received, to turn it over to the treasurer or the proper custodian of the fund. It undoubtedly was the relator’s duty to see to it, so far as he could, that the company’s property was preserved and used solely for corporate purposes, but this did not prevent him from receiving money from the corporation in satisfaction of a just claim, nor did it make him guilty of larceny if he received money from the corporation in satisfaction of an illegal claim if he believed he had a right to receive it. It may be that the payment to the defendant was an ultra vires act, for which reason an action could be maintained by the corporation to reclaim or recover such money; but, if this be assumed, it does not show the defendant was guilty of larceny in receiving it, inasmuch as there are no facts stated from which, as we have already seen, a jury would be justified in finding a felonious intent, which is absolutely necessary before one can be found guilty of the crime of larceny. To say that the defendant’s intent is a question for the jury is simply begging the question. As a general proposition, the intent of a person committing an alleged criminal act is for the jury; but if, in connection with the act which is alleged to be criminal, there are other facts and circumstances which negative the existence of a criminal intent, or are consistent with innocence, then a conviction cannot be had, and it is the

I am of the opinion, therefore, for the reasons stated, that the order appealed from should be reversed, the writ sustained, and the relator discharged.

PATTERSON, J., concurs.

I concur in the opinion of Mr. Justice Mc-LAUGHLIN. The affidavits presented to the city magistrate do not show that the crime of larceny, as defined in the statute, was committed by the relator. It is conceded that criminal intent is an ingredient of the crime, is a fact, and must be proven as well as the overt act. It is not charged in the information, nor is it shown by the affidavits, that the relator took, or received, or became possessed of the moneys of the insurance company feloniously. Criminal intent implies design, purpose, and deliberation. It is not the. act of taking the money which per se constitutes the crime of larceny, but there must be associated with the act the guilty purpose and design of depriving the owner thereof or appropriating the same to the taker’s own use, or that of some person other than the owner. The fraudulent or felonious intent is an intent without an honest claim of right. 1 Whart. Grim. Eaw, § 883. It is quite true that there are cases in which criminal intent will be inferred from the act itself; that is to say, -where that act is in its nature wrongful. In the present case, the act charged as inculpating the relator was his receiving money of a corporation in reimbursement of an amount he had paid out of his own private funds at the request of the president of that corporation, upon a promise of repayment from the corporate moneys. He undoubtedly had full knowledge that he was advancing money as a political contribution for and on behalf of the insurance company, and that he was to be repaid from funds of that company, but that knowledge does not necessarily imply an intent on his part to steal in receiving satisfaction of a claim which he honestly believed he had against the corporation and which constituted a debt due him, and that he had such belief appears in the statement made by him and which was received and acted upon by the magistrate as part of the proof upon which the warrant was issued. The contribution for political purposes was not, at the time mentioned in the information, "prohibited by law. The officers and those in control of the insurance company had no power to use the money of the company for such a purpose, and the relator may be compelled by a civil action to make restitution of what he received; but the inference of an intent to steal the corporate money (and that specific intent is required to be shown) cannot be drawn from the fact that m excess of corporate power corporate money was applied for a purpose not prohibited by law. “It is elementary that, where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent.” People v. Plath, 100 N. Y. 592 , 3 N.

Thus far we have merely the following circumstances: That tne relator, at the request of the president of the New York Life Insurance Company, advanced moneys to the treasurer of the Republican National Committee for election purposes; that, at a meeting of the finance committee of the insurance company, they were informed of the advances; that the members of the committee expressed the opinion- that reimbursement should be made from the funds of the company; and that reimbursement was made. That is about all those affidavits show. In addition, there is an affidavit made by Mr. Buckner, a vice president of

Those were all the facts laid before the magistrate by way of information. The statement of the relator is used as part of the information and to establish the facts; and upon all of them, as they are arrayed in the affidavits, there is nothing sufficient to justify the imputation of criminal intent or a design on the part of the relator to steal the moneys of the insurance company by appropriating them to his own use, Oi to the use of some one other than the corporation. The facts are plain,

McLAUGHLIN and CLARKE, JJ., concur.

The contribution of money to a political party for legitimate campaign purposes, at the time of the occurrences here under consideration, was neither malum prohibitum nor malum in se. The federal government having no control over insurance matters, the contribution to a national political party for such purposes in a national campaign by an insurance company would not only not be malum prohibitum or malum in se, but would not even be wrong ethically to the extent of implying criminality, without alleging and proving a corrupt or wicked motive and a felonious or evil intent. There is no allegation in these papers of a felonious, criminal, or wicked intent; nor is theic. any proof tending to establish such intent. How an act believed to be for the use of the corporation for its benefit and advantage in aiding to procure the general good of the country by the success of a national party—an act not prohibited by the common or statute law—can be made a crime, without alleging and proving the necessary ingredient of crime, to wit, criminal intent, I do not see. If under precisely similar circumstances Mr. McCall had said to Mr. Perkins, “I have decided to make a contribution to the San Francisco Relief Fund, but as other disasters may happen, and I do not want this to be an embarrassing precedent, I want you to contribute to the Red Cross up to $25,000 as they need it, and I will see that you are reimbursed,” and Mr. Perkins had made the contribution, and Mr. McCall had reimbursed him from the funds of the company, would any one have asked for his indictment ? But it might be said the political contribution might have been made to procure improper political or official favors. Precisely, but that would have involved a criminal intent, and it is the absence of any allegation or proof thereof in these papers which lead me to concur in the reversal of the order and the discharge of the defendant

PATTERSON, J., concurs.

I agree with Mr. Justice INGRAHAM, and with my associates, that the order should be reversed and the relator discharged, and will briefly state my views. A criminal or felonious intent is an essential element of the crime of grand larceny in the first degree. The crime with which the relator is charged cannot be committed either unconsciously or innocently. The depositions and statement on which the warrant was issued not only do not charge that the money was taken or appropriated or received by the relator with intent to deprive the owner thereof, but the facts set forth negative the existence of any criminal or felonious intent. They show that this money was contributed to promote the election of the Republican National ticket, in the

I therefore vote for the reversál of the order and the discharge of the relator.