People v. Kooke — 6 Park. Crim. Rep. 31

Majority

p. 23

Supreme Court. New York General Term,

May, 1864.

Leonard, Clerlce and Welles, Justices.

The People v. James K. Cooke.

Headnote

In an indictment for obtaining money by false pretenses, the name of the person defrauded was charged to be John J. Robinson. The evidence showed his name was spelt Robison. The recorder charged the jury that it was for them to determine whether the two names had the same sound ; and that if the sound was not the same, it was their duty to acquit. On review, the charge was held to be correct.

The indictment charged the obtaining of two hundred and fifty dollars from R., by means of a false pretense. The proof showed that the prisoner, who had induced R. to enlist, had in his hands three hundred dollars, which he told R. belonged to him for his bounty money, and paid R. fifty dollars out of it, and on a false pretense obtained an assignment to the ■ prisoner of the three hundred dollars bounty money, upon which assignment the prisoner received the bounty money from the proper officer on the next day. Held, that it was not erroneous for the recorder to charge ‘‘that if, at the time'R. executed the assignment of his claim upon the county for three hundred dollars bounty, the prisoner had in his possession the amount of money mentioned in the indictment, and it was considered by both parties to belong to R., and the prisoner would have paid it over to R. except for the consent of R. that he might retain it, that was just as much an obtaining of the two hundred and fifty dollars, mentioned in the indictment, as if he had paid it over to R. and received it back from him.”

In an indictment for having obtained money by false pretenses it was charged that the prisoner falsely represented that he was a captain in the Sixth New York cavalry. Held, that the fact was a material one, and one by which a person of ordinary prudence might have been influenced, it appearing that the money obtained by the pretenses was bounty money, and that the person from whom the money was obtained expected to serve in a military company to be commanded by the prisoner.

Form of an indictment for obtaining bounty money by false pretenses.

Charge of the recorder explaining the rules of law applicable to such cases.

This case was brought up from the Court of General Sessions of the Peace of New York on certiorari.

The defendant was indicted for false pretenses, under an indictment of which the following is a copy.

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Gity and Gounty of New YorJc, ss: ■

The jurors of the people of the State of New York, in .and for the body of the city and county of New York, upon their oath, present:

That James K. Cooke, late of the First ward of the city of New York, .in the county of New York, aforesaid, broker, on the seventh day of December, in the year of our Lord one thousand eight hundred and sixty-three, at the ward, city and county aforesaid, with force and arms, on the day and year last aforesaid, with intent feloniously to cheat and defraud one John J. Eobinson, did then and there feloniously, unlawfully, knowingly and designedly, falsely pretend and represent to him, the said John J. Eobinson, that he, the said James K. Cooke, was then and there a captain in the Sixth New York cavalry, and that he, the said James K. Cooke, was then and there enlisting soldiers by authority of the United States Government, for his company, to wit, a company in the said cavalry; and the said John J. Eobinson, then and there believing the said false pretenses and representations so made as aforesaid by the said James K. Cooke, and being deceived thereby, was induced, by reason of the false pretenses and representations so made as aforesaid, to deliver, and did then and there deliver to the said James K. Cooke an amount of bounty money, to wit, a sum of two hundred and fifty dollars, in the lawful money of the United States, of the proper moneys, valuable things, goods, chattels, personal property and effects of the said John J. Eobinson, and the said James K. Cooke did then and there designedly receive and obtain the said sum of money of the said John J. Eobinson, of the proper moneys, valuable things, goods, chattels, personal property and effects of the said John J. Eobinson, by means of the false pretenses and representations aforesaid, and with intent feloniously to cheat and defraud the said John J. Eobinson of the said sum of money; whereas in truth and in fact the said

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James K. Cooke, was not then and there a captain in the Sixth New York cavalry; and whereas, in fact and in truth, he, the said James K. Cooke, was not then and there enlisting soldiers by authority of the United States Government for his company, to wit, a company in said cavalry; and whereas, in fact and in truth, the pretenses and representations so made as aforesaid by the said James K. Cooke to the said John J. "Robinson was and were in all respects utterly false and untrue, to wit, on the day and year last aforesaid, at the ward, city and county aforesaid; and whereas, in fact and in truth, the said James K. Cooke well knew the said pretenses and representations so by him made, as aforesaid, to the said John J. Robinson, to be utterly false and untrue at the time of making the same.

And so the jurors aforesaid, upon their oath aforesaid, do say: that the said James K. Cooke, by means of the false pretenses and representations aforesaid, on the day and year last aforesaid, at the ward, city and county aforesaid, feloniously, unlawfully, falsely, knowingly and designedly did receive and obtain from the said John J. Robinson, of the said sum of money, of the proper moneys, valuable things, goods, chattels, personal property and effects of the said John J. Robinson, with intent feloniously to cheat and defraud him of the same, against 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,

A. OAKEY HALL, District Attorney.

The defendant pleaded not guilty and the issue came on for trial before John T. Hoffman, Recorder, in March 1864.

A. Oakey Hall (District Attorney) appeared for the people, and Messrs. Dean, Fullerton and Spencer for the defendant.

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At the close of the testimony, it appeared that the name of the person, alleged to have been defrauded, was spelt Robison and not Robinson, as set forth in the indictment.

The other facts in the case sufficiently, appear in the charge of the Recorder and in the opinion of the court.

The counsel for the prisoner submitted to the recorder, the following requests to charge:"

I. We ask your honor to charge that if the party alleged to be injured was “ Robinson ”• with the “n” in it, the evidence showing it to be “ Robison,’* it is the duty of the jury, if they find that it is a difference.in the pronunciation of the names, to find a verdict of not guilty on the ground of variance. The recorder refused so to charge, and defendant’s counsel excepted.

II. The indictment in this case is that the defendant, by false pretenses, induced the prosecutor Robison to deliver, and that he did deliver to the defendant two hundred and fifty dollars, the evidence being that Robison. did not deliver him any money, but signed a paper which enabled the defendant to obtain the money from another—the defendant cannot, on this indictment, be convicted; The recorder refused so to charge, and the defendant’s counsel excepted. ".

III. The defendant, on this ■ indictment, cannot be convicted for obtaining the signature of the prosecutor to any written instrument.

IV. That the evidence is uncontradicted that the money paid to Cooke was the money of Blunt and not the money of Robison, and that the prisoner cannot be convicted of receiving that money of Blunt. The recorder refused so to charge, and the defendant’s counsel excepted.

V. That the defendant, as the guardian of Robison had the right to receive the bounty, and he cannot, on this indictment, be convicted of fraudulently inducing him to let him become his guardian. The recorder refused so to charge, and the defendant’s counsel excepted.

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VI. • That the established rule of evidence is that a witness knowingly false in one material respect is to be deemed false in all, and that a verdict cannot be founded on the evidence of th.e prosecutor if they believe the testimony of Hall as to his assignment- to the sixth cavalry, and the prisoner is, therefore, entitled to an acquittal. '

VH. The next is that the false representations must be material, and intended to induce Eobison to enlist in the sixth cavalry.

Recorder Hoffman then charged the jury as follows:— A very full discussion of the facts in the case, both by the counsel for the defendant and the counsel for the people, will render it unnecessary for me to review at any great length the evidence.

The statute of this State declares that every person who, with intent to cheat and defraud another, shall designedly by any false pretense obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable things, shall upon conviction, be punished as therein directed,

It is under that statute that this defendant has been indicted. How let me call your attention to the indictment, in order that you may see precisely what the charge is against the prisoner at the bar.

The indictment charges that the prisoner at the bar, in the month of December, 1863, feloniously, unlawfully, knowingly, and designedly, did falsely pretend and represent to one John J. Eobinson, that he, the said James K. Cooke, was then and there a captain in the Sixth Hew York cavalry, and that he, the said Cooke, was then and there enlisting soldiers by the authority of the United States Government for his company, to wit, a company in the said' cavalry; and that the said John J. Eobinson believing the false pretenses "and representations, made by the said Cooke, and being deceived thereby, was induced,

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by reason of the false pretenses and representations, to deliver to the said Cooke bounty money of the sum of two hundred and fifty dollars. And then the indictment charges that the fact appears to be that Cooke was not a captain in the Sixth New York, and was not then and there enlisting soldiers by authority of the United States Government.

That is the indictment briefly stated. Now, you will perceive that the charge is simply this: that James K. Cooke falsely and designedly represented to John J. Robison that he, Cooke, was a captain in the Sixth New York cavalry, and was enlisting soldiers by authority of the Government of the United States, for a company in that cavalry, and that he made that representation with a design and intent to cheat and defraud Robison, and that Robison, believing it, was induced by it to deliver to Cooke two hundred and fifty dollars. That is the charge in the indictment. ,

Now, as to what is necessary to support an indictment for false pretenses. There are certain general propositions which .may be stated in a few words. The first is, that there must be a false allegation of some fact designedly made; not a promise to do something in the future; not a statement of something that is to happen, or which will be done, but a false statement as to some fact alleged to exist at the time it is made. That must be made designedly with intent to defraud. It must be an allegation such as is calculated to deceive a person of ordinary prudence and caution, and it must have a controlling effect upon his mind, in inducing him to part with some property or valuable thing. To speak more accurately, it must have a controlling effect upon his mind to induce him to part with the particular thing mentioned in the indictment. In the case under consideration, the facts for you to find, and upon which you are to pass, are: First—Did the prisoner represent to the complainant Robinson that he was a captain in the Sixth New

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York cavalry, and that he was authorized to enlist soldiers, by authority of the Government of the United States ? It is not necessary that the whole of the alleged false pretenses should be proven, as laid in the indictment; it is sufficient if a part of it is proved, if that part alone, being believed by the complainant, he was induced by it to part with his property. It is not necessary, in this case, that the prosecution should prove that the prisoner at the bar not only alleged that he was captain of the Sixth Hew York cavalry, but also that he was authorized by the Government of the United States to enlist soldiers. It is sufficient for them to prove, that he represented that he was a captain in the Sixth Hew York cavalry, if, under the instructions which I will hereafter give you, you find that that representation was false, and was made with intent to defraud, and had a controlling influence upon the mind of Eobison, which induced him to part with two hundred and fifty dollars of his money. When you pass upon the question whether he did make that representation or not, then the next question will be for you to say whether it was false. If you say it was false, was it made designedly and with intent to defraud; was it calculated to deceive a person of ordinary caution and understanding to whom it was made. If you should find all these questions in the affirmative, the next question for you to determine would be whether Eobinson was induced thereby to part with two hundred and fifty dollars of his money; whether, believing that representation, it had a controlling influence upon his mind; not whether it was the only thing that operated upon his mind, but whether it had a controlling effect upon him as to whether he should or should not part with his property.

How the first question that is raised here by the counsel is, that there is a variance between the indictment and the proof, inasmuch as the man who is alleged to have been defrauded is named “ Eobison,” and in the indictment he

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is called “Robinson;” and he claims an acquittal on the ground of a variance between the proof and the indictment. I am asked to charge you that the decision of the courts of South. Carolina, which has been cited, is no1 authority in this court in this. case. I charge you that proposition. There is no decision of any court which can bind or control you in reference to this matter. It is a matter for you to determine for yourselves. . You will determine it upon the name as presented, with such evidence as there may be in the case, in regard to its pronunciation and its sound. You, sitting there as jurors, having heard the complaining witness give his name; having-heard the way in which it is pronounced by him and by others who use it, must determine the question for yourselves. It will be for you to determine whether Robison and Robinson are one and the same in sound; if you think they are idem sonans, which is the Latin for sounding the same, there is no variance. If you think they do not . sound the same, it would be your duty to say so, and acquit, on the ground of .a variance between the proof and the indictment; and the prosecution would be at liberty to have the man indicted over again, in which indictment the name would be stated as John J. Robison. That is a •question, as I said before, you are to determine. You are not governed by any rules of law upon this- question, except as I have stated. I give you the only instruction T can, recognized by law.

' I do not intend to review the facts of this case. The story .told by Robinson is simply this: He says that he arrived in the city of Hew York, having been engaged in driving a team on the canal; that he made up his mind to enlist, and fell in with a man named Wallace, and was taken up to some street where he made the acquaintance of the prisoner at the bar. He says that the prisoner at the bar asked him if he wanted to enlist in any particular regiment; he said “ no,” he wanted to go in the cavalry; there

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upon the prisoner told him he was captain in the Sixth New York cavalry." He was-taken to one or two places to enlist, and afterwards he was taken up to the provost-marshal in the Sixth avenue. When presented there for enlistment, he was told there-must-be .some guardian papers taken out, or his parents must come; whereupon they went to the surrogate’s office, where letters of guardianship were taken out and produced to you. The testimony of the recruit is, that he consented this prisoner should be his guardian because he thought he was captain .of his company. He then says he went back to the provost-marshal of the sixth district, and there he took the oath of enlistment, and that he told them he wanted to go in the Sixth New York cavalry (and it seems it was marked upon the papers that he was to go in the sixth New York cavalry); and that" while there, after he had taken the oath of enlistment, the prisoner exhibited to him some money which he says he took out of his pocket-book. That prisoner told him he had his money; that he would give him $50 of it, and that he had better let him keep $250 till he got him a furlough of seven days. That, briefly stated, is the witness’s version of what took place. On the other hand, it is stated by the clerk in the provost-marshal’s office that the complaining witness did not designate the regiment in which he wished to go; that the prisoner did not designate the regiment in which he wished the young man might go; but that the whole suggestion, as to its being the Sixth New York cavalry, was the suggestion of him, the clerk in the provost-marshal’s office.

This point has been presented by counsel, and I am asked to call your attention to it. It is my duty to do so. It does show a conflict of testimony between the clerk in the provost-marshal’s office and the complaining witness. ■It is true, as stated by counsel for the defense, if the jury .find that the witness has designedly told a falsehood in regard to any one thing, it discredits his whole testimony,

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Therefore, when I call your attention to what the clerk says, and contrast it with what Eobinson himself said, I do it that the prisoner may have the benefit of a fair contrast of the evidence, in order that the jury may determine whether the complaining witness has told the truth; and I do it with the view of keeping before you the real charge in this case, that is, that the prisoner- represented that he was a captain in the Sixth New York cavalry; because no matter what other representations he made, if he did not make that representation, he cannot be convicted in this case. It will be for you to say, after reviewing the testimony of the witness Eobinson and the testimony of the clerk, whether Eobinson is discredited. Of course, if you do not believe his story, you cannot convict the prisoner; if you do believe his story, then whether you will convict the prisoner will depend upon the conclusion to which you may arrive upon some other matters to which I will now call your attention. The statute provides that a man may be punished for obtaining a signature to a written instrument by false pretenses. If there was nothing proved in this case but the fact that by a certain false and fraudulent pretense, the prisoner obtained the signature of Eobinson to a certain assignment (which has been produced) on Mr. Blunt or the county, then the prisoner cannot be convicted, because the indictment does not charge that he obtained the signature to a written instrument by false pretenses. If there was nothing in the case but the fact that by reason of that supposed false pretense he obtained the signature to the paper, by means of which he was afterwards enabled to get the money of Mr. Blunt, you could not convict; but on the other hand, if you find upon the evidence in this case, that at the office of the provost-marshal, at the time Eobinson took the oath of enlistment, and executed to the prisoner the assignment of his claim for bounty money, that the prisoner had then and there in his possession three hundred dollars which was considered by

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both parties then to' belong to Robinson, and that the whole of it would have then passed into Robinson’s hands, except for the consent which he gave that prisoner should retain two hundred and fifty dollars of it, then the withholding of it by the prisoner from Robinson upon such consent was, in the eye of the law, as much an obtaining of the money as if it had passed into the hands of Robinson, and been by him handed over to the prisoner at the bai. I will repeat that proposition, in order that there may be no mistake. If you find upon the evidence that at the office of the provost-marshal, at the time Robinson took the oath of enlistment and executed to the prisoner the assignment of his claim for bounty money, the prisoner had in his possession three hundred dollars, which was considered by both parties 'then to belong to Robinson, and that the whole of it would have then passed into Robinson’s hands, except for the consent which he gave that the prisoner should retain two hundred and fifty dollars of it, the withholding of it by the prisoner from Robinson upon such consent was, in the eye of the law, as much an obtaining of it from him as if it had passed into Robinson’s hands, and been handed back to the prisoner.

That, therefore, under the law as I have instructed you, will be one very material question for you to determine. Robinson says : he (the prisoner) took the three hundred dollars out of his pocket-book and told him he had his money. Is that so ? Was that money considered by both parties to belong to Robinson ? If so, then the- withholding it from him with that consent, was just as much an obtaining of the money from Robinson, as if the prisoner had paid it over into Robinson’s hand. Was that consent obtained upon the statement that he, prisoner, was captain in the Sixth New York cavalry? Was that pretense false and fraudulent ? If so, then under the rules as I have stated, there should be a verdict of guilty..

I charge - you, upon the proposition relative to the

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letters of guardianship, that the fact that the prisoner had been appointed guardian of Robinson, cannot avail him as a defense, if you find that he procured himself to be appointed such guardian, as part of the scheme to defraud Robinson. I have charged substantially upon all the propositons of counsel.

Mr. Fullerton.—I desire to have the attention of the jury called to the evidence of Mr. Blunt, which makes it certain ' that the money was not in the possession of Robinson.

Recorder.—It is very certain that the money had not been obtained by Robinson from Mr. Blunt at that time ;

■ but it is not certain that the prisoner did not have in his possession an amount of money which he held out to the complaining witness as money that he could have for his bounty; it is a question for the jury to determine.

Mr. Fullerton.—Does your Honor charge that that is an advance óf money ?

The Court.—I charge this : That if, when the prisoner took his oath of enlistment and executed an assignment, which has been read to you here, of his claim upon the . county or Mr. Blunt, for three hundred dollars, which assignment, you will recollect, recites the fact, that it is in conside..ration of 11 three hundred dollars this day paid” by the said . prisoner at the bar to John J. Robinson—if at that time, the prisoner at the bar had in his possession the amount of . money mentioned in the indictment, and it was thus considered by both parties to belong to Robinson, and the . defendant would have paid it over to Robinson except for the consent Robinson gave that he might retain it, that was just as much an obtaining of the two hundred and fifty dollars which is mentioned in the indictment, as if he had paid it over to Robinson, and received it back

Counsel.—To that I except.

The Court.—In my view of the case, the money from Mr. Blunt was obtained after all these things transpired, ■ and that money is of no importance in this case at all.

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Counsel.—Your Honor will allow me to take an exception to that part of your Honor’s charge.

Mr. Spencer.—I would like to have the points, which have been submitted, specifically charged upon. Your Honor will understand us as excepting to the refusal to charge on each.

Recorder.—Do I understand you as excepting to that part of the charge on the idem sonans 9 • Mr. .Spencer.—Yes, sir..

Recorder.—As to the other part, I shall not charge anything otherwise than already charged.

To this refusal the defendant’s counsel excepted.

The jury rendered a verdict of guilty.

Gilbert Dean, for the prisoner.

I. The indictment stated no offense.

II. The alleged false representations were immaterial, and no conviction can be sustained even if they were proved.

HI. The recorder should have charged as requested in reference to the name of the complainant. (See 258, Wharton Criminal Law.)

IV. The court erred in refusing to charge as requested—■ that as this indictment was for obtaining the money from Eobison, and Eobison never had the money, and never owned it—that defendant could not be convicted.

V. The court erred in the charge.

VI. The prisoner was convicted not on the evidence, but by and on account of gublic prejudice and in obedience to newspaper clamor.

A. Oakey Hall (District Attorney), for the people.

I. Whether or no (although there was confessedly a variance in the spelling) there was a variance in the sound in complainant’s name, was a question of fact for the jury.

1. Error in assigning name to a defendant is avowed by

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plea in abatement, which is tried by a jury. (1 Whar. Cr. Law, § 537.)

2. Error respecting, complainant’s name cannot arise .until trial discloses it. It is then for the jury to determine as a fact in the case. (1 Whar. Cr. Law, § 258.)

In Queen v. Davis (2 Denison C. C., 231), after argument before Campbell, C. J., and Barons Alderson and Platt, and Justices Talfourd and Coleridge, the court held'“the conviction must be quashed, as the chairman had not treated the question respecting the similarity of sound of the two names as a question of fact for the jury, but as one of law which it was for him to determine; and this court could not affirm as a matter of law that the two names sounded alike.” The old law is in that wise. (See Bac. Abr. Tit. Misnomer.)

II. The bounty money was obtained from Robinson by Cooke under the false pretenses alleged in the indictment.

1. If, by common consent of R. and C., the money in C.’s hands, as an advance, was treated as the bounty; was considered as paid by C., the captain, to C., the guardian, and was treated as the fund which, in C.’s hands, belonged to R., this .was a possession by R. equivalent to a physical possession.

2. Certainly C. cannot be allowed to set up that' the money was not (1) bounty, and (2) the “ property and effects ” (see language of indictment) of R., because to permit such denial would be allowing one fraud to aid another; and to let C. take advantage of his own wrong.

3. How many commercial instances might be cited wherein money can be obtained by A. from B. without B. ever manually having it—as by transfer of accounts, etc., etc.

4. The recorder’s charge, therefore, places. the transaction in a commercially sensible as well as technically legal position.

5. The whole theory of the system described by Mr.

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Blunt shows that the broker did not simply advance, but paid and created the bounty fund. He paid the recruit. Mr. Blunt paid the broker. The county paid Mr. Blunt. There being no statutory regulation on the subject, the different parties to what may be called “ the bounty-fund-expediency” were at legal liberty to arrange the contract matter and payments, etc., as they pleased to arrange them.

6. The court will specially observe that Cooke took a written acknowledgment from Bobinson (it is embraced in words in the assignment paper), that he, Bobinson, had received the money from Cooke.

The principal questions in this case arise upon exceptions taken to the charge of the recorder.

The indictment charged the prisoner with defrauding John J. Bobinson. The evidence was that the name was spelt Bobison. The counsel for the prisoner requested the recorder to instruct the jury, if they found there was a difference in the pronunciation, that they must acquit, on the ground of variance.

The recorder charged them that it was for them to determine whether the names had the same sound. If the sound was not the same, it would be their duty to acquit.

The error in the spelling was not observed throughout a long trial, during which the name was often repeated, until near the close of the evidence of the last witness.

It was then discovered that the person defrauded, who was also a witness at the trial, had signed his name at the Surrogate’s office “Bobison.”

We do not know how the sound was given by the witnesses in pronouncing the name, but it appears certain that the difference in the sound did not attract the observation of even the attentive and watchful counsel for the prisoner. We cannot say that the difference in the spelling was such as necessarily to constitute a variance. The

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question depended on the sound, and was necessarily and properly submitted. (1 Wharton’s Crim. Law, § 258.)

The prisoner’s counsel also insisted that the indictment charged the defendant with inducing Eobinson, by false pretenses, to deliver, and that he did deliver, to the defendant $250, the evidence being that Eobinson did not deliver him any money, but signed a paper which enabled' the defendant to obtain the money from another, and the learned counsel requested the recorder to charge the jury that the defendant could not therefore be convicted.

The charge to the jury was substantially as follows, viz: “If at the time Eobinson executed an assignment to the defendant of his claim upon the county for $300 bounty, the prisoner had in his possession the amount of money mentioned in the indictment, and it was considered by both parties to belong to Eobinson, and the defendant would have paid it over to Eobinson except for the consent of Eobinson that he might retain it, that was just as much an obtaining of the $250 mentioned in the indictment, as if he had paid it over to Eobinson and received it back.” The counsel for the prisoner duly excepted to this proposition.

The evidence was, that Eobinson was about eighteen years of age, and had been unable to obtain his bounty money as an enlisted volunteer without having a guardian appointed. That the prisoner had represented himself to be a captain in a cavalry regiment then in the service, called the Sixth New York cavalry, in which Eobinson desired to enlist, and supposing that the prisoner would be his captain, if he enlisted in that regiment, he had chosen him for his guardian, and the surrogate of the city of New York had, on his application, appointed the prisoner as the guardian; that Eobinson had then enlisted in that regiment and had taken his enlistment oath; that the prisoner showed him a roll of money, and said it was his bounty money; that he had received it; that the

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prisoner paid him $50, and asked him to let the prisoner keep the rest of it for him till the expiration of his furlough of seven days, when the prisoner would pay it to him; that Eobinson at this time executed an assignment of his $300 bounty to the prisoner; that the prisoner did not in fact receive the bounty money till the next day, and that he then obtained it through the aid of the said assignment.

It does not appear to be essential that the prisoner had not in fact then received the bounty money. The theory suggested by the recorder’s charge can be sustained, I think. The prisoner became the purchaser of Eobinson’s claim to the bounty, and took an assignment of it. The consideration therein expressed was the whole sum of the bounty, $300, and Eobinson thereby acknowledged that he had received it. It was his money. He had the right to receive it. The prisoner said it was Eobinson’s money. There can be no doubt that the prisoner thought it was his, and he was fully justified in his opinion. The prisoner cannot be permitted to urge in his defense that he stated a falsehood when he told Eobinson that the money was his. Holding the prisoner to the truth of his assertion, it may be said that both parties considered it to be the money of Eobinson. The transaction on both sides was based on that understanding. . The want of manual possession by Eobinson does not change the character of the business. The prisoner having persuaded Eobinson to let him keep the money a short time, apparently for its safe custody, cannot now be permitted to impose a new character upon the transaction, different from that which he designedly impressed upon it at the time, in order now to escape the punishment merited by the crime which he stamped upon • the occurrence by what he said and did.

The jury were authorized in finding, under the charge referred to, that the parties considered the money to belong to Eobinson, and that the defendant would have paid it

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over to him, except for his consent that the prisoner might retain it, and therefore there was no error in the charge.

The victim believed the business to be real, and there can be no good ground for holding that the jury might not believe.that the prisoner meant it for a reality.

Hayes, who was indicted for bigamy, was not permitted to escape from punishment, because the person whom he had produced and represented to his victim to be a minister, and who personated a minister, was not one in fact, nor authorized by law to celebrate the marriage ceremony. (Hayes v. The People, 25 N. Y. R., 390-399; same case in Sup. Court, 15 Abb. P. R., 163 .)

The learned counsel for the prisoner also insisted that no offense was charged in the indictment or proven at the trial, because the statement that the prisoner was a captain in the Sixth Hew York cavalry was not a material fact, and no person of ordinary sense or prudence could have been influenced by such a representation.

Under many circumstances such a statement would have little influence. Eobinson expected to serve in a military company to be commanded by the prisoner. He stated it so to the prisoner, and he did not deny it. The position, if real, would have created, in a certain sense, a confidential relation on the part of the prisoner to Eobinson. He would be subject to the orders of the prisoner, and largely dependent on him for the treatment he should receive, and even for food and raiment, justice or tyranny.

In the present instance the fact so stated by the prisoner was material.

These were all the grounds urged before us for a reversal of the conviction.

We are of the opinion, therefore, that the conviction should be affirmed, and that the Court of Sessions should proceed to pronounce sentence. .

Proceedings affirmed.