Bielschofsky v. People — 10 N.Y. Sup. Ct. 40

Majority

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FREDERICK BIELSCHOFSKY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

Headnote

False pretenses—OTuwacter of prisoner—when may he attacked—Scienter—Turn proved.

Where, in an indictment for obtaining money by false pretenses, several representations are set out, it is sufficient to show that any one of such representations was false, and fraudulently made, provided it be proved to the satisfaction of the jury, that such representation was a substantial inducement to the parting with the money.

The plaintiff in error was indicted, jointly with two others, for obtaining money by false pretenses. Upon the trial the prosecution was allowed to show that the plaintiff in error, with one of his coindictees, had attempted to obtain money from another woman, by means of the same false representations which were set out in the indictment. Held, that this evidence was admissible to show the intent of the accused in the particular offense, and also as tending, to show the known falsity of the pretext upon which the money was obtained.

Evidence of previous offenses of the accused may be given, in order to show the intent with which the particular transaction was committed, although it may incidentally prejudice his character in the minds of the jury.

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Wbit of error to the court of General Sessions of the city and county of Hew York, to review the conviction and sentence of the plaintiff in error, upon an indictment charging him jointly with two other persons, with obtaining money by false pretenses.

On the 15th of September, 1873, Bernheimer and the plaintiff in error called at the house of Catharine Wulff, and represented to her that the former was president and the latter “ book-keeper ” of an insurance company, in which her late husband, then recently deceased, had taken a policy in her favor, and that the company were ready to pay her $300 whenever she should call for it. Shortly after their arrival, Oppenheimer called, and inquired for somebody not living in the house. When informed that there was no such person there, he appeared greatly grieved, and told a story of his distress and want. Bernheimer seemed to sympathize with him and handed him fifty cents, which he refused to accept, saying that he was a rich man, just arrived in the country; that he had many valuable goods in the custom-house, and that if he could only get $150 to pay the duties his troubles would be over. He produced two watches which he proposed to leave with Mrs. Wulff, as security for the repayment of that sum, if she would lend it to him. The watches were inspected by Bernheimer, who declared that they were worth $300, and offered to buy them at that price. Oppenheimer refused, saying that they belonged to relatives in Hew Orleans, and were not for sale. Subsequently, Mrs. Wulff handed $150 to Bernheimer, who passed it to Oppenheimer. The latter then delivered the watches and left the house, accompanied by the plaintiff in error, who went with him, at Bernheimer’s suggestion, “ so that nothing would happen to him.” Soon afterward Bernheimer himself left. Hone of the parties ever returned. It was proved upon the trial that the true value of the watches was not above seventy or eighty dollars.

Upon the question of the knowledge of the plaintiff in error that the watches were not worth the sum pretended, and in order to show that he and Bernheimer were not themselves deceived, but that all three defendants were engaged in a conspiracy to defraud Mrs. Wulff, the district attorney was permitted, under objection, to prove a transaction almost precisely similar, occurring

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on September thirteenth, two days previous, between one Eliza Schmidt and the two defendants, Bernheimer and Bielschofsky.

Wm. F. Kmtzmg, for the plaintiff in error.

Benj. K. Phelps, district attorney, for the defendant in error.

The plaintiff in error was indicted jointly with two other persons for obtaining $180 from one Catharine Wulff, by means of false pretenses and representations. The indictment set out several alleged representations, each of which was averred to have been false and fraudulent. The evidence tended to show the making of the several representations ; but direct evidence was given of the falsity of but one. The court was asked to direct an acquittal, on the ground that the prosecution had not negatived the allegation that one of the parties had goods at the custom-house, which were held for non-payment of duties, and would be sold, if the duties were not paid thereon, on that day.

The court held, in substance, that it was sufficient to show the falsity of any one of the alleged pretenses which induced the complainant to part with her money. We think the ruling was correct. It was sufficient to show that one of the material representations alleged was false and fraudulently made, provided it was proved to the satisfaction of the jury that such representation was a substantial inducement to the parting with the money.^[2] Besides, it could hardly be said, with accuracy, that there was no evidence tending to show that the other representations were not also false and fraudulently made, because evidence was given, proper for the consideration of the jury, tending to establish a conspiracy on the part of all the persons indicted, to obtain Mrs. Wulff’s money by false pretenses. And if the jury were satisfied of the existence of such a conspiracy, and had proof that a material portion of the representations made in carrying it into effect were false, they might properly find, in the absence of all explanation, that the

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other statements were made for the same purpose, and were also untrue.

The conduct and declarations of the several parties, together with the proof showing that one of them, with the prisoner, went through the same performance two days before, for the purpose of getting money from another woman, and the verisimilitude of their acts and statements on both occasions, were quite enough, we think, to justify the court in submitting to the jury, whether or not the whole story was not a preconcerted scheme to accomplish a criminal purpose.

The other point made in the case is upon the admissibility of the evidence showing that the plaintiff in error, together with one of his coindictees, practiced the same fraud on another person a day or two prior to the commission of the offense charged in the indictment, in which the prisoner acted the same part played by another of the parties on the occasion of obtaining the money of Mrs. Wulff.

It seems to be supposed by the learned counsel for the plaintiff in error, that this evidence was given to affect the general character of his client. It was offered for no such purpose. It is well settled, that evidence of the general bad character of the accused cannot be given on the trial, unless he first opens the door by giving evidence of his general good character. But this rule does not go the length to exclude evidence given for other and competent purposes, because its incidental or indirect effect may be to prejudice the character of the accused in the minds of the jury. Such a rule would exclude proof of the crime charged in the indictment, because it might be well argued that proof of the party’s crime could not be given without impairing to a greater or less extent the value of his presumed good character.

The evidence offered of the previous like transactions of the accused, was given to show the quo animo, or intent, of the accused in the particular offense charged, and also0 as tending to show the known falsity of the pretexts upon which the money of Mrs. Wulff was obtained.

For these purposes we think it was competent; and the effect to which it was entitled, was left by the court fairly and entirely to the jury.

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The cases are very numerous which hold, with more or less directness, the propriety of such evidence.^[2]

The judgment must be affirmed.

Daniels and Barrett, JJ., concurred.

Judgment affirmed.

* See Wharton’s Crim. Law (6th ed.), sec. 650; Wood v. U. S., 16 Peters’ S. C. Rep., 360; Commonwealth v. Tuckerman, 10 Gray, 173 ; Copperman v. The People, 1 Hun, 115 , and cases there cited; 3 Greenleaf Ev., § 15.

Footnotes

* People v. Haynes, 11 Wend., 557 ; People v. Herrick, 13 id., 87; Fowler v. The People, 18 How., 493 .