People v. Barringer — 59 N.Y. St. Rep. 78

Majority

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The People, Resp’t, v. Julia E. Barringer, App’lt.

(Supreme Court, General Term, First Department,

Filed February 16, 1894.)

Headnote

Evidence—Intent—Criminal law.

Where a written agreement is put in evidence to show felonious intent, parol evidence is competent to rebut such intent.

Appeal from a judgment of conviction of grand larceny.

17. T. Jerome, for app’lt; J. L. Lindsay, for People.

The defendant was charged in the indictment with grand larceny, there being two counts. The first charges her with the felonious misappropriation of the sum of $2,000, the property of one Zacharias V. Spinosa, in her possession, custody, and control as bailee; and the second charges her with feloniously , taking, stealing, and carrying away the same sum belonging to said Spinosa. Evidence was given upon the part of the people and upon the part of the defendant, and, the jury having rendered a verdict of guilty of grand larceny in the first degree from the judgment thereupon entered this appeal is taken.

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Upon the part of the people, the complainant was examined as a witness. He testified that he was a teacher of languages, living at 75 East 100th street, in the city of New York, in May, 1891, and that at that time he saw an advertisement in a newspaper relative to some business opportunity. The complainant answered the advertisement in writing, and subsequently called upon the defendant, Ho. 10 East 14th street, and met there the defendant and her husband. A conversation was had, to the effect that she wanted somebody to help her in her business, as a bookkeeper; that she-had been imposed upon by several other people, and needed somebody of trust; and that she required at the same time a deposit of $2,000 or $3,000 as security. He told her he would consider it, and went home. The second time the defendant sent for complainant, and he went back three or four days afterwards. At this time she said that if he would remain there she would give him half the profits of the business carried on in the house, and that the money complainant advanced would be returned at the end of 12 months in a lump. The complainánt replied that he had determined not to give the $3,000 as security, but he would not mind making an experiment for 12 months, and would give her a security of $2,000. This was accepted, and an agreement was drawn up by Mr. Smith, a brother of the defendant, who was present at the trial. The agreement was as follows:

“ Articles of agreement between Julia E. Barringer, of the city and county of New York, of the first part, and Zacharias V. Spinosa, of the city and county of New York, of the second part. The party of the first part, in consideration of the sum of $2,000-to her paid in hand as hereinafter provided, covenants and agrees to take the party of the second part into her service, at Ho. 10 East 14th street, for the term of one year, beginning from this date, and it is left to the pleasure of Mr. Spinosa to continue rendering his personal services; and it is further agreed that, at the expiration of nine months from this day, either party of this contract shall give notice to the other if the cancellation of this agreement is desired, and the party of the second part shall be entitled, as pay for his services, one-half of the net proceeds arising from the commission business carried on at Ho. 10 East 14th street, city of New York, under the name of the party of the first part. The, said amount of $2,000 to be returned to the second party, in a lump, at the expiration of the contract. The party of the second part, in consideration of the interest given to him as herein provided, covenants and agrees to pay to the party of the first part $500.00 (five hundred dollars) on the signing and execution of this instrument, and $1,500 (fifteen hundred dollars) more in three different payments, at $500 .each, (until the sum of $2,000 is paid,) at such time as may be required by the party of the first part during the term of the agreement as above specified. In witness whereof, the parties hereunto have set their hands and seals the eighth day of June, in the year one thousand eight hundred and ninety-one.

Julia E. Barringer.

Zacharias Y. Spinosa.”

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This was signed and executed by the parties in the presence of .Smith, who had' drawn the same up. Pursuant to this agreement, the complainant paid the defendant $500, and four or five days afterwards made the next payment of $500, and three or four days after that a payment of $1,000. After the agreement, the complainant went there, in accordance therewith, to see what services he could render. The defendant asked him to copy certain chattel mortgages, which she drew with his name inserted as the mortgagee. The complainant said he did not like to have his name in those papers, and she said he need not fear; that his name wduld not be made public: that she could not insert her own name, because she was the broker, and if she inserted her own name it would be usury, but that she, as a broker, could charge any brokerage she liked. He made out seven or eight of these mortgages, which the defendant kept. The complainant did not keep any of them in his possession. This was all the bookkeeping he did. At the end of three weeks the complainant was introduced to a gentleman by the name of Armelia Castilo by the defendant, she saying: “ Here is a friend of mine, Mr. Castilo. He is a partner of mine.” The defendant told him afterwards that he would be entitled to half the profits she was making with him as a special partner. She said:

“ ‘H"o,’ I would not be entitled, because he would be a different partner from me. Question by the Court: Q. He was a different partner? A. Yes, sir. I said, ‘Ho;’ that I was nothing but her bookkeeper there; that I was entitled to half the proceeds of the business carried on in the house, according to the agreement; and that I could not be a partner, because 1 was nothing but a bookkeeper, and she had my money as security. She said then that the contract was wrong, and that it would be altered. I said, if the contract was wrong, and had to be altered,- that the money had to be returned to me after that, and we could see what new arrangements we could make. She said, ‘Ho,’ she wouldn’t give me the money back, but she would make a verbal contract, allowing me $40 a week for the use of the $2,000. She asked me if I wouldn’t be contented with that. I said ‘ Ho, that would be usury;’ I would stick to the contract to give me half the profits of the business carried on in the house.”

After that the complainant went to see his lawyer, and subsequently went to see the defendant, and tried to get as much money as he could out of her by way of profits. After certain negotiations, he got $15 a week on account of profits for two or three months from the latter part of August until the end of Hovember,, 1891. The complainant further testified to giving the notice under the contract, and the $2,000 was never returned. On cross-examination it appeared that the complainant had brought an action in the supreme court to recover the amount claimed to bs due. In his complaint he swore that he bad given the defendant $2,000, and received back $642, leaving a balance of $1,358. Tt further appeared that in June he had received certain other sums of money ; and the complainant further testified that the $2,000 was, to be given as security. It further appeared that, in addition

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to the mortgages testified to as being taken in the name of Spinosa, he received a number of notes which were held by him, and which were taken in the business carried on by the defendant.

Upon the part of the defense, the husband was examined as a witness. He testified as to the negotiations between the complainant and the defendant, and to certain conversations in regard to the form of the agreement, and that the complainant was to advance the money to put into the business, and that he stated how he wanted the money invested,—that the mortgages were to bear 6 per cent, interest, and to be taken in his name, and that he was to have half of the brokerage. The defendant was also examined on her own behalf, to the effect that he had $2,000 to invest, and that the money was to be invested on chattel mortgages on furniture, and the notes and mortgages were to bear 6 per cent, interest, and he was to have that; and that she was to charge 30 per cent, commission, the half of which was to go to the complainant. The defendant also offered as a witness William J. Smith, who drew the agreement, and he testified that at the time, or just before, it was signed, he heard a conversation between the defendant and the complainant, and when asked to state whether it was at the time, or immediately before, the court asked whether it was for the purpose of modifying or changing anything. The defendant’s counsel stated that he proposed showing what the conversation was, and the court replied that he would not allow him to introduce any evidence to contradict the paper. The defendant’s counsel stated that he proposed to show that at the time, or immediately before, it was signed, defendant objected to the word “ service ” in the agreement, and that the complainant insisted upon its going in there; and the court refused to allow the evidence. The defendant’s counsel insisted upon the right to show what was the understanding and agreement, and what was said in connection with the contract, and what led up to it. The court refused to allow the evidence. The defendant’s counsel then asked:

Q. At the time this contract was signed, was there anything suggested by Mr. Spinosa about avoiding the usury law? A. Yes, sir. Q, How, what did he say in regard to avoiding the usury law ? A. He said he would put that word 1 service ’ there to evade the usury law, to get around it—something like that. That is what he said. The Court: And then it was signed with that understanding? A. Yes, sir. The Court: And therefore the defendant in this case entered into an agreement to violate the statute by evading the usury law, so that one was about as bad as the other.”

The defendant’s counsel then asked:

“Did you hear any conversation immediately before the signing of this, or some time before between these two, as to what was to be done with this money ?”

This was excluded upon the ground that all conversations and all agreements are supposed, in law, to be merged in the written agreement; and an exception was taken. It is urged upon the

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part of the defendant that this was error. The complainant had "been allowed to testify as to the conversation which led np to the agreement, and the purpose for which the contract was entered into. It is true that no objection was taken to this. The defendant and her husband had also been examined on this point, and had testified. It further appeared from the testimony that Smith was present at the time of the execution of this agreement, and at the time it was drawn up; and, notwithstanding this condition of the testimony, the court refused to allow the witness Smith to testify upon the same subjects in respect to which the other witnesses had been examined. And the question submitted to the jury was whether this money was given to the defendant by the complainant as security, and the jury were instructed that if the defendant received it upon that understanding, and then, with intent to deprive the complainant of its possession, she used it for any other purpose than as security for his good conduct, and appropriated it to her own use, she was liable to be convicted under the indictment of grand larceny in the first degree. The jury were further charged that, in determining to whom they would give credence, they should take into consideration the written agreement, and, although any subsequent agreement in reference to the transaction might be made orally or by parol, no prior conversations or transactions were permitted to contradict or impeach the written contract. The court was further asked to charge the jury that if they found upon the evidence that, at the time the complainant delivered the money to the defendant, it was agreed that it should be invested in chattel mortgages, and the profits divided, and it was so invested, then the defendant should be acquitted. The court replied, “I have charged that, substantially, and I refuse to charge other than I have charged.” The question thus submitted to the jury was as to the circumstances under which this money was paid; and, as already stated, evidence had been given, both on the part of the people and the defendant, as to the circumstances which led up to this agreement. The agreement itself shows nothing in regard to the purposes for which the money was to be given. It is true it says that the complainant was to be entitled to half the profits for .his services, and that the amount of $2,000 was to be returned in a lump at the expiration of the contract. But the agreement is not of that definite and explicit character as to deprive the defendant, even as between the parties, of the right to give testimony as to the purposes for which the money was to be used; and it is clear'that in the case of a criminal prosecution the rule applied by the learned recorder cannotprevail. The question is as to the felonious intent of this defendant; and she cannot be precluded from showing that such felonious intent-did not exist, simply by the production of a paper wherein she has written or signed something inconsistent with her claim of the non-existence of the felonious intent. She is not estopped by any such writing. The jury have a right to consider the writing, in determining the question as to the credibility of the witnesses, and the weight to be given to the testimony; but there is no ground, in a case of that description, for the application of the

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rule that parol evidence cannot be offered to rebut the claim of felonious intent. The defendant, therefore, had a right to the testimony of Smith for the purpose of showing that it was the understanding of the parties, at the time this money was delivered, that it was to be invested in chattel mortgages, and not to be held merely as security. For this error, we think the judgment should be reversed, and a new trial ordered.

All concur.