pretenses is made a species of considerable detail what acts shall larceny by $ 528 of the Penal constitute larceny and what intent Code, the common form of in- shall characterize the crime, and dictment for larceny is sufficient, in the end provides that he who without alleging any false pretense with such intent does any such or representation.

acts, steals any such property, is P. Chamberlain, Jr., for applt. guilty of larceny. The word steal

J. W. Taylor, Dist. Atty., for is thus defined by the statute itself respts.

as covering all the prescribed deHeld, That under an indictment

an indictment tails, and its use in the indictment, for larceny, alleging that defend- which charges the taking to have ant unlawfully and feloniously did been felonious or with a criminal steal, take and carry away, de- intent, sufficiently includes the fendant may properly be convicted particular intent to constitute a of the commission of a larceny by larceny.' means of false pretenses under $ In Virginia the statute makes 528 of the Penal Code.

the obtaining of money or other Section 275, Code Crim. Pro., property by any false pretense provides that the indictment must larceny; and the courts hold that contain a plain and concise state- an indictment for the offense may ment of the act constituting the be either in the form of indictment crime without unnecessary repe- for larceny at common law, or by tition.

charging the specific facts which Whilst the indictment does not the act declares shall be deemed allege the fraudulent representa- larceny. 20 Gratt., 716; 9 id., 734. tion or pretense, it does charge that These authorities appear to susdefendant unlawfully and feloni- tain respondents' position, and inously did steal, etc. In other cline us to hold that the indictwords, it charges the act, but does ment is sufficient, and that there not charge the means by which was no variance between the proof the act was accomplished. A simi- and the indictment. lar question has been considered In People v. Moore, 37 Hun, 84, by the courts in reference to in- this question was not considered dictments charging the crime of by the court. murder under the statute prescrib- We are aware that a different ing different degrees of that crime. rule prevails in California. 18 See 37 N. Y., 413; 80 id., 500; 97 Cal., 337; 19 id., 600; 12 id., 291. id., 62.

But in view of the authorities of In Phelps v. People, 72 N. Y., our own State, we think that 350, it was held a sufficient aver- these cases cannot be followed. ment of the crime of larceny in Judgment and conviction afthe precise words of the statute. firmed.

In People v. Willett, 102 N. Y., Opinion by Haight, J.; Smith, 251, Finch, J., observed that "SP.J., Barker and Bradley, JJ., 528 of the Penal Code defines with concur.



her sole name; that the taxes,

assessments, improvements, etc., N. Y. SUPREME COURT. GENERAL

have been borne by the joint conTERM. FIFTH DEPT.

tributions of the parties; that Michael Roche, applt., v. Kate such contributions of money by Roche, respt.

plaintiff were made in reliance Decided Oct., 1886.

upon defendant's representations

that the purchase was upon their An interlocutory judgment was entered,

declaring that plaintiff is equitably enti. joint account, and in pursuance of tled to an interest in certain premises, the agreement before mentioned. the legal title to which defendant wrong. It was adjudged that plaintiff is fully acquired in her sole name; and decreeing an account to be taken of all the equitably entitled to an interest in moneys contributed by each of the par

the premises, that an account be ties to the payment of the purchase price, taken of all the moneys contributed and that the interest of each be adjudged by each of the parties on account in proportion to the amount so contrib

of the premises, and that the preuted. Defendant being insolvent and the premises being incumbered, Held, a cise interest of each be adjudged proper case for the appointment of a re- in proportion to the amount so ceiver to collect the rents of that portion contributed. It was admitted that of the premises which had been leased.

in May, 1881, defendant gave a Appeal from order denying plain- mortgage of $1,000 on the premtiff's motion for the appointment ises, and in 1884 she conveyed a of a receiver.

portion of the premises, and in Action to obtain a judgment de the following year she executed a claring plaintiff's interest in cer- mortgage for $2,863. The parties tajn real estate, etc. A trial was reside upon the premises, upon had resulting in an interlocutory which there are other buildings judgment, in which the following which are rented for the sum of facts were found : Defendant pro- $48 per month. It was charged posed to plaintiff to buy the prem- in the moving papers that defendises in suit for him and herself ant is insolvent, and this charge and desired his co-operation in was not denied by her in the oppaying for the same; he assented posing affidavits. to the proposal and agreed to con- John C. Hubbell, for applt. tribute the earnings of himself and John Laughlin, for respt. family; defendant purchased the Held, That under the circumpremises for $2,800, and paid $300 of stances disclosed a proper case was her own money, and plaintiff from presented for the appointment of and after the time of such pur- a receiver. It has been adjudged chase contributed to the payment and determined that plaintiff is a of the agreed portion of such pur- part owner of the premises and is chase money his earnings and the as much entitled to the rents as entire wages of his daughters; defendant herself. If, as it is that defendant wrongfully ac

claimed, she is insolvent and is quired the title to the premises in collecting the rents and expending

Vol. 25-No. 9.


the same for her own benefit, until he has made up his mind be. plaintiff may suffer prejudice in yond all question that he is necesconsequence.

sarily right and the others are Order reversed and motion to necessarily wrong.” To this stateappoint a receiver granted of that ment defendant's counsel excepted. portion of the real estate which at The jury thereupon brought in a the time of the motion was rented, verdict for plaintiff. but not of that portion occupied Edgar L. Fursman, for applt. by plaintiff and defendant as a R. A. Parmenter, for respt. residence, and the case remitted to Held, Error; that it was incumthe Special Term to name a proper bent upon plaintiff, who held the person to act as receiver and fix affirmative of the issue, to satisfy the amount of security to be given the jury by a preponderance of by him.

evidence of the facts upon which Opinion by Haight, J.; Smith, her right to recover depended. If P.J., Barker and Bradley, JJ., she failed to do so defendant was

entitled to a verdict. The jurors

who were not satisfied by the PRACTICE.

evidence of the truth of plaintiff's

allegations were justified in refusN. Y. COURT OF APPEALS.

ing for that reason to find a verdict Cranston, admrx., respt., v. The in her favor, although they might N. Y. C. & H. R. RR. Co., applt. | not have made up their minds Decided Dec. 17, 1886.

beyond all question that they were After a failure to agree in a civil case the necessarily right and that those court sent the jury back with the instruc- who were in favor of finding tion that “no juror ought to remain en- a verdict for plaintiff were necessatirely firm in his conviction one way or the other until he has made up his mind

rily wrong. To sustain the instrucbeyond all question that he is necessarily tion would be to cast upon defendright and the others necessarily wrong." ant in a civil action a burden quite Held, Error.

as heavy as that which rests upon This action was brought to re- the prosecution in a criminal case. cover damages for the negligent If the evidence was so clear as to killing of plaintiff's intestate. Af- lead to a conclusion with the degree ter the jury had retired to consider of certainty required by the charge, their verdict, they came into court, there was nothing to submit to the and one of them stated that there jury, and it was the duty of the was no probability of their agree-court either to direct a verdict or ing. The court replied : “I can't to nonsuit plaintiff. take any such statement as that.

Judgment of General Term, Gentlemen, you must get together affirming judgment on verdict for upon a matter of this kind.” He plaintiff, reversed, and new trial then added : "No juror ought to ordered. remain entirely firm in his own Opinion by Rapallo, J. All conconviction one way or another, cur.


band was deceased before suit N. Y. SUPREME COURT. GENERAL brought, and she was in possession

of the land. Plaintiff offered to TERM. FIFTH DEPT.

prove that the clause in the lease Gilbert M. Vandervoort v. Mary relating to the payment of money D. S. Dewey.

was inserted by the draughtsman Decided Oct., 1886.

without the knowledge of either

party to the lease; that it was so A lease was made to defendant and her

inserted for the purpose of prohusband for life, with a reservation that the lessor might terminate after the viding for a nominal consideration husband's decease by paying to the wife only; that at the time of the exe" the sum of

dollars.” Plain

cution of the lease defendant distiff acquired title under foreclosure of a mortgage given by the lessor, and brought

ght cl

claimed any right to compensation ejectment against defendant, whose hus- for the surrender of the lease, and band was deceased. Plaintiff offered to that she has at divers times since prove that the clause quoted was in

made such disclaimer. This offer serted by the draughtsman merely for

was refused by the court and exthe purpose of expressing a nominal consideration, etc. Held, That the condition ception taken. or reservation being defective by reason W. H. Adams, for plff. of the omission to express the considera

Smith & Hamlin, for deft. tion, the whole was void for uncertainty,

HAIGHT, J.-The defect in the Motion for new trial on excep- lease consists in the omission to tions ordered to be heard at the insert in the blank the amount General Term in the first instance.

to be paid to defendant to termiEjectment. In Feb., 1876, de- nate the lease at the decease of fendant's husband was the owner Jedediah Dewey. This defect is a of certain premises, and both joined patent and not a latent ambiguity, in a conveyance thereof to their and consequently cannot be corson, A. D., who, on the same day, rected by parol evidence. 2 Pars. executed to them a lease, in consid- on Con., 557, 563; 1 Keyes, 486. eration of such conveyance, for If the question was one of conthe term of their natural lives, re- struction as to the meaning of the serving, however, the right to ter contract, and the language was minate the same at any time after such as to be capable of two or the decease of defendant's hus- more constructions, parol evidence band, when the lessor has an op. might be competent; there is nothportunity of selling the premises, ing in the provisions of the con“by paying to said Mary D. S. tract that gives us the least intimaDewey the sum of

dol- tion as to the number of dollars that lars.” This lease was duly record it was intended to insert therein, ed. In October, 1882, the said A. but an omission which can only be. D. executed a mortgage upon said supplied by the court making for premises, under which plaintiff the parties a contract which they derived his title by purchase at have failed to make for themselves; foreclosure sale. Defendant's hus- this the court has no power to do.

[ocr errors]

It therefore follows that the offer fy, under objection to its competo give parol evidence by plaintiff's tency, that on another occasion counsel was properly excluded, some four days prior to the offense and this clause of the lease is void charged in the indictment defor uncertainty ; but it does not fendant made an assault upon her follow that the entire lease is void. with intent to ravish her. The demise was to defendant dur- Ceylon H. Lewis, Dist. Atty., ing her lifetime; the consideration

for respts. was the deed in which she had John C. Hunt, for applt. joined with her husband to her Held, Error. The admission of son, the lessor. This part of the such evidence is attempted to be lease is separate and independent, justified upon the theory that it and clearly expresses the intention was competent to show defendof the parties. The defective ant's purpose and motive in the clause pertains to the condition act complained of.

act complained of. But the purupon which the lease may be ter pose and motive of defendant in minated, but this clause fails to the crime charged, if proved, was fully express the condition and is not the subject of doubt. The void for uncertainty.

evidence admitted tended to estabMotion for new trial denied, and lish another and different crime judgment ordered for defendant from that charged in the indictupon the nonsuit.

ment. From such evidence, if Barker and Bradley, JJ., con- believed, the jury would more

readily infer defendant's guilt of

the offense for which he was tried. CRIMINAL LAW. EVIDENCE.

In any event such evidence was

likely to prejudice the jury seriN. Y. SUPREME COURT. GENERAL ously and strengthen the chances TERM. FOURTH DEPT.

of a conviction. The evidence of

another crime on a former occaThe People, respts., v. John E. O'Sullivan, applt.

sion was not competent evidence

against defendant upon this trial, Decided Nov., 1886.

and the admission of such evidence Upon a criminal trial evidence that defend- was an error fatal to the convicant committed another crime on another tion. 55 N. Y., 81 ; 56 id., 591 : occasion is not competent.

76 id., 291; 32 id., 1+1; 17 W. Appeal from judgment of Court Dig., 383; Roscoe Crim. Ev., 88, of Oyer and Terminer, convicting 810; 93 N. Y., 470, 473; 6 Lans., defendant of the crime of rape, and 462. There are exceptions to the from an order of said court deny. general rule which are pointed out ing defendant's application for a in the authorities cited; one is new trial.

where guilty knowledge is an inDefendant was convicted of the gredient of the crime, as in cases crime of rape. Upon the trial the for passing counterfeit money or complainant was allowed to testi- receiving stolen property. Another


« ForrigeFortsett »