Weyman v. People — 11 N.Y. Sup. Ct. 511

Majority

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GEORGE WEYMAN, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

Headnote

Larceny—property obtained, by artifice — when title does not pass—Intent—how may be shown.

The prisoner received a lot of jewelry from Kuhn & Co., with the understanding that if not sold the jewelry was to be returned, and that if any part was sold he was to return the price of the part so sold. Held,, that, under such arrangement, the title to all the articles not sold remained in Kuhn & Co.

Held, that if .the possession of the jewelry was obtained feloniously, for the purpose of depriving the owners of it, by means of such artifice, it constituted the crime of larceny.

The distinction between this class of cases and obtaining money by false pretenses, is, that in the latter the owner intends to part with his title.

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For the purpose of showing the guilty intention in such case, it is competent to show that the party accused was engaged in other similar frauds about the same time, when the transactions are so connected as to time, and so similar in their other relations, that the same motive may reasonably be imputed to them all.

Writ of error to the New York Court of Oyer and Terminer, on conviction of the plaintiff in error of the crime of grand larceny.

George Weyman, plaintiff in error,

was tried at the February term of the Court of Oyer and Terminer, for the county of New York, 1815, upon an indictment for grand larceny, convicted, and sentenced to imprisonment in State prison for five years.

He was a jeweler, doing business at No. 11 John street. On the twenty-seventh day of November, he sent his clerk, with a memorandum order, to the firm of Charles Kuhn & Co., jewelers, doing business at No. 18 John street, which order called for certain articles of jewelry — a memorandum order meaning, in the jewelry business, to convey the idea, among persons engaged in that business, that the person who sends the order wants the articles.specified in the order for the purpose of showing them to some particular customer, with a view of enabling the customer to inspect the goods, and tó decide (out of the number sent) which he will take, and, when he has decided, that the balance shall be returned, together with the cash for the one or more actually sold. Messrs. Kuhn & Co. sent five pairs of bracelets, delivering the same to the clerk, who, in turn delivered the same to Hiram Kraft, the agent of George Weyman, and who was in his employ.' Subsequently Weyman called upon Kuhn & Co., saying to them that he had shown the bracelets to his customer, and that his customer had not decided as to which he would take, and that he wanted until next morning to decide, which request was granted. Weyman subsequently left the city, and, upon the twenty-seventh day of January following, was arrested in California, and upon a requisition brought back to the city of New York. Messrs. Kuhn & Co. never received back the bracelets, or any money from Weyman realized upon any sales. ■ Hpon the question of the “ intent” of Weyman at the time he got the bracelets from Messrs. Kuhn & Co., the court permitted the district attorney to prove that Weyman had obtained, upon the twenty-fourth day of November preceding, of the same year, from

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the firm of Smith & Hedges, jewelers, of No. 1 Maiden lane, a set of diamond studs upon a like pretense, and on the twenty-fifth November, two watches of Reuben. S. Middleton, none of which were returned.

W. F. Kintzing, for the plaintiff in error.

It is not larceny if the owner of personal property intends to part with the property and delivers the possession absolutely, although he has been induced to part with it by fraudulent means. (Smith v. The People, 53 N. Y., 111 ; Ross v. The People, 5 Hill, 294 ; Lewer v. Common wealth, 15 Serg. & Rawle, 93 ; 2 East P. C., 668, and cases cited; Wharton Am. Cr. Law [5th rev. ed.], 1780; Archibald’s Crim. Pl., 895; 1 Russell on Crimes, 563; Com. v. James, 2 B. & H. Ldg. Cr. Cases [2d rev. ed.], 181, 204; Blunt v. Com., 4 Leigh, 689 ; Rex v. Jackson, 1 Moody C. C., 119; Mowrey v. Walsh, 8 Cow., 238 ; Regina v. Barnes, 2 Den. C. C., 59; Reg. v. Thomas, 9 Carr. & P., 741; Reg. v. Adams, 1 Den. C. C., 38; Rex v. Adams, Russ & Ry. C. C., 225.) If the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. (1 Hawkins P. C., § 1, p. 208 ; Reg. v. Middleton, 12 Cox’s Crim. Cases, 260; People v. McDonald, 43 N. Y., 61 ; 2 Russell on Crimes [6th ed.], 35; Hilderbrand v. The People, 56 N. Y., 394 .) There was not sufficient trespass to constitute larceny. (Reg. v. Thomas, 9 Carr. & Payne, 741; English Am. Law Rep., 314.) It is well settled that stolen property can at all times be reclaimed by the owner, although it may have been purchased by an innocent purchaser, in good faith and for a consideration. That is upon the theory that he has never voluntarily parted with his property; the title to the same still remains in him. Did the prosecutor in case at bar part with his property in the jewelry? When he gave the articles of jewelry into the possession of the accused, he gave him the right to sell and dispose of them to a customer, to convey title to the purchaser. Certainly the accused must have had property in the jewelry; otherwise he could not convey it; and if the accused had sold the jewelry, the original owner never could recover the specific articles, or the price of them, from the purchaser. It is well settled that testimony of the

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prisoner’s guilt or participation in the commission of a crime, wholly unconnected with that for which he is put on trial, cannot be admitted. (Roscoe’s Crim. Ev. [7th ed.], 92, and note ; Com. v. Call, 21 Pick., 215 ; Dunn v. State, 2 Ark., 229 ; Bottomley v. United States, 1 Story, 135 .) Therefore, it is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit crime. (1 Roscoe’s Crim. Ev., 57; 1 Leigh, 574 ; Barbour’s Crim Law [2d ed.], 395.) Nor is it competent to prove other acts, going to establish another distinct offense, for the purpose of raising an inference that prisoner has committed the offense for which he is on trial. (2 Russell on Crimes [6th ed.], 776.) No principle of law is better settled than that the law presumes every citizen to be a person of good character, and that, on the trial of a criminal action, the prosecutor can in no way impugn the defendant’s character, unless such defendant puts his or her character in issue. (People v. Bodine, 1 Den., 291 ; People v. White, 24 Wend., 520 ; People v. White, 14 id., 167; People v. White, 14 id., 112; People v. Lamb, 2 Keyes, 378; State v. O'Neil, 7 Iredell, 251; Ackly v. People, 9 Barb., 69 ; Commonwealth v. Hardy, 2 Mass., 317 ; 3 Greenl. on Ev., 25; 1 Phillips on Ev., 177, 145.)

Horace Russell, assistant district attorney, for the people.

Where with the' animus furandi a person obtains consent to his temporary possession of property and then converts it to his own use, he is acting against the will of the owner and is a trespasser. (The People v. Hildebrand, 56 N. Y., 394 ; The People v. Smith, 53 id., 111; The People v. McDonald, 43 id., 61; The People v. Call, 1 Denio, 120 ; Lewer v. The Commonwealth, 15 S. & R., 98; 1 Hawkins P. C., chap. 33, § 9, p. 509 ; 2 Russell on Crimes, 22; Starkie's case, 7 Leigh, 752 ; Reg. v. Slowly, 12 Cox Cr. C., 269 ; Reg. v. Bird, id., 257; Rex v. Stanley, Russ. & Ryland, 305 ; The State v. Watson, 41 N. H., 533 ; The State v. Humphrey, 32 Vt., 569 ; Welsh v. The People, 17 Ill., 339 ; see 2 Bishop’s Crim. Law [5th ed.], 444, § 811, and notes, where the cases are collated.) The transaction which was the subject of this prosecution being one of the many done in pursuance of the general intent, proof of the other transactions establishing the general intent was

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admissible. (Wood v. The United States, 16 Pet., 360 ; Wharton Crim. Law [6th ed.], 650 ; Com. v. Eastman, 1 Cush., 189 ; Com. v. Tuckerman, 10 Gray, 173 ; Reg. v. Richardson, 8 Cox, 448 ; Com. v. Stone, 4 Metc., 43 ; Com. v. Jenkins, 76 Mass., 485 ; Copperman v. The People, 56 N. Y., 591 ; Bielschoffsky v. The People, MS.; 1 Bishop on Cr. Pro., 666, and cases cited.)

It appeared, upon the trial, that the prisoner, on the 24th of November, 1874, sent what was known as a memorandum order to Charles Kuhn & Co., jewelers, carrying on business at No. 18 John street, in the city of New York, for six pair of gold band bracelets, which were thereupon sent to him by that firm. The prisoner was engaged in the same business and, in its transactions, the order was designed and understood to be an application for the articles mentioned in it, for the purpose of showing them to a customer, and enabling him to inspect them and select out of the number sent, which, if either, he would take, and, if he accepted either, that the money for that, with the remainder of the articles, should be returned to the persons sending them on the order. And the evidence tended very directly to show that such was the character of -this transaction between the prisoner and Kuhn & Co. But neither the articles sent to him, nor the money for either of them, were at any time returned by him.

Upon these facts it was objected by the prisoner’s counsel that he could not be convicted of larceny, because, upon the delivery of the articles, both the title to them, and their possession, passed to him. But this position cannot be maintained, for the title cer-. tainly did not pass. The property, under the arrangement, remained in Kuhn & Company in all the articles not sold by the prisoner. He had the power to sell and transfer the title to such of the articles as he might dispose of in that manner. But until a sale was made, the title was in no respect changed. It continued uninterruptedly in the persons from whom they were procured, as long as no sale was made by the prisoner. That was clearly the design and effect of the transaction. It was not its purpose, that the title in any event should pass to the prisoner. He was "the mere custodian of the property for the persons sending it to him; and if he acquired

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that feloniously, for the purpose of depriving the owners of it by means of the artifice he made use of to obtain it, that was sufficient, within the rule sanctioned by the authorities, to constitute the crime of larceny. (Whart. Crim. Law [4th ed.], 1847-1852; Hilderbrand v. People, 8 S. C., 19 ; 56 N. Y., 394 ; Smith v. People, 53 id., 111.) Whether he did or not was a question for the jury under the evidence given in the case, and that was fairly submitted to them for their determination. The distinction between this class of cases, and obtaining -property by means of false pretenses, seems to consist in the circumstance, that in the latter the owner intends to part with his title with the change of custody, _ while in the former no intention of that kind exists.

The people were allowed to show that the prisoner, on the same day and the day following that on which he procured these articles from Kuhn & Company, in the same way and by similar means, procured other articles of jewelry from other persons, and appropriated them to his own use. This evidence was offered and received for the simple purpose of establishing his intent to be felonious in obtaining those mentioned in the indictment. His counsel excepted to the ruling under which it was admitted, and now relies upon the exception for the reversal of the conviction. By the evidence which was excepted to, it appeared that the prisoner, on the twenty-fourth of November, obtained from Smith & Hedges, jewelers in Maiden lane, a set of diamond studs, worth $500, on a representation that he had a customer for them; and on the next day, the twenty-fifth, procured from E. S. Middleton, another jeweler in the same street, two gold watches on a similar representation; all of which were to be returned by him unless they were purchased by the customers, and in that event, the money was to be returned instead of the article it might be received for. The three transactions occurred within two days, and the similarity in their leading features and characteristics, justified the conclusion that they were pervaded and controlled by the same general intension. It was one intent, manifested by three-distinct acts. / But that so far connected them as to render them all manifestations of the same purpose. It combined them in one felonious plan, each of which was but a portion of its execution. And the several acts were allowed to be'shown, in order to enable the jury to determine

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what was the intention of the prisoner in the one which was the subject of the indictment. That was the gist of the crime it was charged he had committed, and, ordinarily, proof of its existence must depend upon the circumstances attending the transaction.

In other cases where the intention with which an act has been performed has been a material circumstance to be ascertained, evidence of this description has been received. Where goods have been obtained by means of fraudulent representations, it has been held that as the intent is a fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds about the same time; provided that the transactions are so connected as to time, and so similar in their other relations, that the same motive may reasonably be imputed to them all. (Hall v. Naylor, 18 N. Y., 588 , 589; Hennequin v. Naylor, 24 id., 139; Allison v. Matthieu, 3 Johns., 235 ; Rankin v. Blackwell, 2 Johns. Cas., 198 ; Bielschofsky v. People, 10 S. C., 40 ; Com. v. Eastman, 1 Cush., 189 .) The same thing is very common for the purpose of establishing guilty intent on 'trials for passing counterfeit money, and in other cases mentioned in section 15, volume 3, of Greenleaf on Evidence. In Stuart v. Lovel (2 Stark., 84) Lord Ellenborough declared that there was no doubt but that other libelous publications would be admissible in proof of the intention the trial of an indictment for a libel. And in Reg. v. Dossett (2 Car. & Kir., 306), on an indictment for feloniously setting fire to a rick of wheat-straw, proof was allowed to show that it had been previously set on fire by the prisoner firing a gun very near to it. In that case Justice Maulé held, that in many cases it is an important question whether a thing was done accidentally or willfully. If a person were charged with having willfully poisoned another, and it were a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person who had died, although that might be proof of a distinct felony. In the cases of uttering forged bank notes, knowing them to be forged, the proofs of other utterings are received to show the intent, while all are distinct felonies. Several cases are added in a note to this decision, fully sustaining the principle mentioned by the court.

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The case of Reg. v. Richardson (2 Fost. & Fin., 343). is still more analogous to the present one. The trial was for embezzlement, and evidence was offered of similar errors in the prisoner’s account, before and after those forming the subject of the charges. This was objected to on his part, but the proof was held to be proper, and it was received by the court.

And a decision quite similar was made on the trial of an indictment for the same offense, in the case of Com. v. Tuckerman ( 10 Gray, 173 ). The case of Reg. v. Geering (18 Law Jour. [M. C.], 215) went quite as far as the court did upon the trial of the prisoner. That was an indictment for murder by means of arsenic; and the prosecution proposed and was allowed to show, on the trial of the prisoner for poisoning her husband by arsenic given him in tea prepared by her, that arsenic had been taken into the stomach of three of her sons at other times; that two of them had died of poison, and that the symptoms of all the four parties were the same; that they all lived with the prisoner, and formed part of her family; that she generally made the tea for them, cooked their victuals, and distributed the same to them on their leaving the house to go to their work in the morning. Pollock, G. B., held ' this evidence proper, and stated that Aldebsok and Taleoubd concurred with him. He added in his decision, that it was not inadmissible by reason of its having a tendency to prove a subsequent felony.

Moggs case (4 C. & P., 364) was disposed of under the same principle. The prisoner was indicted for administering arsenic to horses, and the prosecution was allowed to show, as evidence of his intent, that it had been done by him on' other occasions. Hinckworth’s case was an indictment for robbery. The prisoner went with a mob to the prosecutor’s house, and one of the mob went to him, and civilly, and, as he believed, with good intention, advised him to give them something to get rid of them, which he did. To show that this was not bona fide advice, but simply a mode of robbing the prosecutor, evidence was received of other demands of money by the same mob, at other houses, at different periods of the same day, when some of the prisoners were present. And it was held by Parke, J., to be proper, after a conference with Vatjghak and Alderson, and in which Lord Tejnterden con-

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curved. Other cases of the same general tenor will be found in Eoscoe’s Criminal Evidence (5th Am ed.), 81-83, 94, 95.

The evidence which was received by the court on the trial of the prisoner, seems to have been within the principle maintained by these authorities. If other criminal acts can be received, as they most certainly have been, with the sanction of the courts, for' the purpose of proving the intent with which the act charged as criminal was committed, no good reason exists for excluding it in prosecutions for larceny. The intent is the vital fact to be ascertained; and other acts, plainly within one common purpose or design, have been allowed as legal evidence of it. In treason, murder, robbery, arson, embezzlement, fraud, receiving stolen goods (Copperman v. People, 8 S. C., 15 ; 56 N. Y., 591 ), and other cases, such acts, as proof of intent, have been received, and no reason appears why larceny should not be included in- the same principle. The prisoner’s counsel insists that it was a violation of the rule precluding the prosecution from proof of bad character, when no evidence on that subject was given on his part. That rule does not include direct evidence of the prisoner’s guilt. It relates |( to general proof of character, and nothing else. \ Facts tending to prove the accused guilty of a specific crime, may incidentally affect his character, as they certainly would, but that is no reason why they cannot be proved. If- it were, no person could ever be proved guilty of a crime which he himself did not confess. The 'proof offered and received by the court was that of a fact constituting a material ingredient of crime. It was direct proof of guilt in no sense in conflict with the rule invoked in support of the exception taken. The object of it was to show that the prisoner was probably actuated by one general intention including all the property he managed to obtain on the three different occasions, and it had a direct tendency to exhibit the nature and character of that intent.

It was received solely for that purpose, and directly tended to show an intention to steal when the property was procured which was the subject of the trial. The prisoner was rightly convicted, and ^ the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.