People v. Bough — 16 N.Y. St. Rep. 18

Majority

p. 18

The People of the State of New York, Resp’t, v. John Bough, App’lt.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

1. Criminal law—Larceny—What evidence will support indictment.

A conviction upon an indictment charging a common law larceny cannot be sustained by proof justifying the finding of a verdict of larceny by false pretences.

2. Same—Sufficiency of proof.

Where there was no proof that any reliance was placed upon the false representations made or that any credit was given to the defendant therefor: Held, that there was a defect of proof to establish any grade of larceny.

Appeal from judgment of the court of general sessions convicting the defendant of the crime of larceny.

Abram Suydam, for app’lt; W. T. Jerome, for resp’t.

The appellant was indicted in the court of general sessions in the usual common law form for grand larceny.

It appears upon an examination of the charge of the learned court that the case was submitted to the jury as one of false pretences, and the only question submitted to them f6r their consideration was whether the defendant had obtained from the complainant the possession of his property by color or aid of false and fraudulent representations, and with the felonious intent of appropriating the property after he had so obtained the possession of it to his own use, and deprived the complainant permanently of its possession.

Under the principles stated in the case of The People v. Dumar ( 106 N. Y., 502 ; 11 N. Y. State Rep., 19) a conviction upon an indictment charging a common law larceny cannot be sustained by proof justifying the finding of a verdict of larceny by false pretences. The case in question 11 expressly decides that under a common law indictment for grand larceny such indictment cannot be sustained by proof that the defendant obtained possession of the property from the owner by false and fraudulent representations.

But the difficulty with the judgment in the case under discussion lies deeper than this, in that the proof seems to be defective in establishing any grade of larceny whatever.

p. 19

Whatever the representations made by the defendant may have been, there is no proof that any reliance was placed upon these representations or any credit given to the defendant thereof. The proposed customer was not named, no statements as to his responsibility were made, and consequently the credit which was extended to the defendant was in no degree influenced by reasons of these representations. The goods were delivered to the defendant upon his own credit, and no credit whatever was given to any other person in respect thereto.

Under these circumstances, it cannot be said that any of the representations which were made by the defendant in respect to 'his having a customer could have had any influence upon the mind of the seller of the goods.

We think, therefore, that the proof was substantially defective in not showing that the credit to the defendant was induced by reason of representations as to the solvency or character of the pretended purchaser. The seller of the goods received all the security which he asked for and in regard to the value of that security no representations whatever were made.

We think, therefore, that the conviction should be reversed and a new trial ordered.

Bartlett and Daniels, JJ., concur.