People v. Albow — 53 N.Y. St. Rep. 869

Majority

p. 869

The People, Resp’ts, v. George Albow, App’lt

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Criminal law—Green goods.

Section 527 oí the Penal Code makes it a felony to aid or ahet a scheme to defraud by means of circulars offering for sale paper money or informing anyone where it can be obtained; it is not aimed solely at counterfeit paper money.

(Pratt, J., dissents.)

Appeal from judgment of the Dutchess county court of sessions, entered upon conviction „ of defendant for a violation of § 527 of the Penal Code, in that he aided and abetted in a green goods scheme.

The indictment was as follows:

“ The grand jury of Dutchess county, by this indictment, accuses George Albow of aiding, abetting and assisting in a scheme of offering, or purporting to offer, for sale and exchange green goods, so called, being paper money, or pretending so to be paper money, by means of circular and letters and telegrams addressed and sent to one Ephraim Cassell, at East Fork post office in the state of Horth Carolina, in the months of December, 1892, and January, 1893, and by which the said Ephraim Cassell and Ira Hogshead were induced to come to the city of Poughkeepsie, in the county of Dutchess and state of New York, to deal with him, said George Albow, therefor, and for that the said George Albow, on the 12th day of February, 1893, at the city of Poughkeepsie, in this county, did state to one Ephraim Cassell that he would take him, said Cassell, and one Hogshead, then and there being, to an old gentleman in the city of New York who had one hundred thousand dollars of goods like a one dollar greenback, so called, being a treasury note issued by the government of the United States of America, and then and there said Albow showed said Cassell said one dollar treasury note as aforesaid, when he, said Ephraim Cassell, could, with said old gentleman, exchange one hundred dollars of his, Cassell’s, money for one thousand dollars of said old gentleman’s money, which said Albow then and there said to said

p. 870

Cassell at said city of Poughkeepsie on said 12th day of February, 1893, was as good as said one dollar bill which he, said Albow, showed to said Ephraim Cassell, and asked said Cassell to go with him at once to said city of New York, and also one Ira Hogshead, to get the said money of the old gentleman, which said money said Albow called and designated as ‘ goods,’ and which offer and statements by said George Albow were to carry out the scheme of selling, or pretending to sell, to said Cassell and said Hogshead 1 paper money ’ or ‘ goods,’ or what was claimed to be such, contrary to § 527 of the Penal Code, and contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.

“Horace D. Hitfcut,

“District Attorney of the County of Dutchess.”

Defendant claims that no offense under § 527 is charged, because the indictment did not state or use the words “ counterfeit money.”

Daniel O' Connell and A. J. Rose, for app’lt; Horace D. Hufcut, dist. att’y, for resp’ts.

The section of the Penal Code under which this indictment is framed is not aimed solely at counterfeit paper money. The section was designed to meet a nefarious business which may include counterfeit money, but the persons engaged in it were generally careful to advertise good money which would be sold at much less than the face value. The transaction sometimes resulted in a sudden snatching of the money of the proposed buyer, and a flight with it by the seller or his agent. Sometimes the good money of the buyer was obtained by a package so made up as to represent a package of money, and before its examination the sellerwould disappear. The evil which the legislature intended to prevent is shown in the present case. Some one writes a letter to one Cassell, in South Carolina, under the name of Charles Mansfield, 283 St. Nicholas avenue, N. Y. This letter contains an offer to sell goods so that Cassell could make money. The price is stated to be $3,000' for $300 and larger sums for smaller prices. The place of meeting between buyer and seller was Poughkeepsie, N. Y., where the buyer was to register under an assumed name, at a specified hotel there. Cassell was to send a message by telegram, and this telegraphic message was to be ¡produced by the seller at Poughkeepsie. There was a long and artfully prepared communication to the effect that by the neglect of the officials of the general government there was a fraudulent issue of government paper money. That it seemed to the writer of this communication that duplicate articles were in the possession of New York parties, and that the work of the government could not be detected from the work of “ those people in New York.” Cassell accepted, and was met in Poughkeepsie by the defendant at the place designated, and admitted himself to be the proposed seller who had arranged the meeting. The indictment fairly tells this story. That the defendant by means of circular letters addressed to Cassell offered him paper money, or what was pretended

Dissent

p. 871

to be paper money. That by means of this letter and circular and contents, Cassell was induced to come to Poughkeepsie to buy of George Albow, the defendant, money or pretended money, and that there he showed a good'$1.00 government bill, and offered to take Cassell to Hew York to an old man who would sell to him' bills like at the rate of $1,000 for $100 of Cassell’s money. These bills he called goods.

By § 527 of the Penal Code it is made a felony to aid or abet a scheme to defraud by means of circulars, offering for sale paper money; informing any one where it could be obtained. The statute in question is strictly followed in and by the indictment.

“ A person * * * who circulates or distributes * * * any letter * * * offering for sale * * * any counterfeit coin, paper money, * * * or other tokens of value, whether called ‘green articles,’ ‘queer coins,’ ‘paper goods,’ ‘bills of spurious treasury notes,’ ‘United States goods,’ ‘green paper goods,’ ‘business that is not legitimate,’ ‘cigars,’ ‘green cigars,’ or by any other name or title, or any other device of a similar character, shall be guilty of a felony.”

The telegraphic messages were properly received. The defendant in his conversation with Cassell admitted that he had sent them.

The conviction should, therefore, be affirmed.

Dykmah, J., cóncurs.

(dissenting).—The conviction in this case must be justified, if at all, under § 527 of the Penal Code, which requires the following elements to constitute a crime: The printing, circulation or distribution of a letter, circular, card, pamphlet, hand bill or any other written or printed matter which shall offer or purport to offer for sale, exchange, or as a gift, •counterfeit coin or paper money, or which shall give or purport to give information where counterfeit ■ coin or paper money can be procured, with the intent to defraud, etc.

The indictment contains no allegation that the acts charged were with intent to defraud. It does not say that any act charged had any relation to counterfeit coin or counterfeit paper money. The nearest approach to a charge of anything counterfeit is that the offer related to “green goods, so called, being paper money, or pretending to be paper money; ” * * * that the goods were “ like a one dollar greenback, so called, being u treasury note issued by the government of the United States,” etc. The allegation seems to be that the stuff was money, “being paper money,” “being a treasury note,” etc. This is rather an allegation of the genuineness than the counterfeit character of the stuff.

We are sorry to feel forced to hold that this indictment did not charge a crime, for the evidence strongly tends to show that the defendant ought to have been punished under the section in question.

We, therefore, reverse this conviction; but,'instead of discharging defendant, will order a new trial, thinking that perhaps something may yet be devised to promote justice in the premises.

Conviction affirmed.