
    Supreme Court—Appellate Division—Fourth Department.
    July, 1901.
    THE PEOPLE v. C. WILBUR MONROE.
    (64 App. Div. 130.)
    Larceny—Penal Code 528—Attorney obtaining money by false statements TO A WOMAN, THAT SHE WOULD BE CRIMINALLY PROSECUTED. Where an attorney went to a woman who had been subpoenaed to appear upon the investigation of a man’s death, but had been privately interviewed by the coroner and sent home, and by telling her that there was strong evidence against her and that the proceedings were started, etc., hut if she would give him twenty-five dollars he would settle arrangements so she couldn’t be locked up, it is enough to uphold a conviction of the attorney under section 528 of the Penal Code.
    Appeal by the defendant, C. Wilbur Monroe, from a judgment of the County Court of Monroe County in favor of the plaintiff, entered in the office of the clerk of the county of Monroe, affirming a judgment of a police magistrate rendered on the 12th day of October, 1900, convicting the defendant of the crime of petit larceny.
    G-eorge D. Forsyth, for the appellant.
    Robert Averill, Assistant District Attorney, for the respondent.
   Spring, J.

Based on information upon oath of one Minnie Oansdale, the defendant was arrested upon a, warrant issued by the police justice of the city of Rochester charging him with the crime of petit larceny in “obtaining by threats and by false and fraudulent representation the sum of twenty dollars from Minnie C'ansdale, September 13th, 1900, at Rochester, K. Y.” The defendant was arraigned and plead not guilty, and after a trial was convicted by the police magistrate- and sentenced to- the Monroe county penitentiary for two years, which conviction was affirmed by the Ooumtty Court.

The only questions presented for our consideration are whether the facts contained in the information and proved upon the trial constitute the crime • charged, and whether the conviction is justified by the evidence. A brief review* of the prominent facts is necessary.

The body of one Covell was found in a sand pit in the city of Rochester, on the 12th day of September, 1900, and near it were a woman’s hat, an umbrella and a handkerchief. On the preceding day Cbveil, who was a cartman, had been engaged in removing the furniture of Mrs. Oansdale to' a store which she was carrying on. The coroner at once began an investigation to* ascertain the cause of Oovell’s dearth, and Mrs. Oansdale was subpoenaed toi appear, but was not examined on the public proceieding. She w'as interviewed privately by the coroner and that official was satisfied that she was not implicated in Oovell’s death, and permitted her’ to' return home. On the following day she had a conversation relative toi the dearth of Covell with Mr. West, who occupied the floor above her store, and of whom she had purchased the goods or lease of the store. The defendant is an attorney and counsellor at law and West, who* is an Italian, had been in the habit of procuring clients for him. West brought the defendant to' Mrs-. C'ansdalei, and a conversation then occurred ini which the alleged representations were made, which are the foundation of the charge against the defendant.

The complainant was the principal witness for thei Peoplei. She testified that, the defendant said he wanted to defend her; that when she insisted she was not guilty, he replied: “There is strong evidence against you and more enemies than you know of, because we knew all these things . . . Many is the innocent one that is locked up' and many is thei innocent one that is brought before thei grand jury, and we can’t tell how this is going to turn out.” A further statement that if she would give him twenty-five dollars “that he would settle arrangements and find out these things and I wouldn’t have to he locked up. . . . He would try toi make it all right; yes, that I wouldn’t have toi go to Police Court or anything; * * * that I was liable to- go because the way things was, it was so well started that there was not much of any other help for me.” In response to a question asked by the defendant she testified: “You said you- knew a great part of it and probably more than I did, because you were at tire court and you heard those things.” Again, that he said to- her: “There was such strong evidence against me that I couldn’t help being arrested.” That he told her*, “it was already started” in the Police Court for her arrest, “because there had been such strong evidence against me.”

Under the pressure of these representations and to relieve herself from the stigma of an arrest and confinement in jail, which she believed was inevitable unless averted by the defendant, she paid him the twenty-five dollars. If her story is to be credited the defendant stimulated her fears by the statement that! proceedings were already under way for her arrest. He was a practicing lawyer and assumed to possess inside information as to the result of the legal proceedings, and that he could ward them off if he was paid the twenty-five dollars, but without, his intervention she was in imminent peril of punishment, as “there was strong evidence against her.” ' If the defendant up- to- that time had in fact made any inquiries at all he knew no complaint had been lodged against her, and that the coroner had exonerated her from any suspicion which may have arisen connecting her with the death of Coveil. The defendant and West contradict Mrs. Oansdale. West testified he talked the matter over with her and suggested that she employ an attorney and sbei requested him to engage one for her, and he accordingly asked thq defendant to call upon her. Both of these men testified that the defendant said nothing to- frighten her. That she narrated to. Mm the facts connected with her appearanee before the cor oner, and that tibe twen¡ty-five dollars were voluntarily paid as a retainer; that defendant was fo investigate the matter pending before the coroner, and that the acceptance of the money simply created the relation of attorney and client between them. The thirteen-year-old daughter of West testified that on the day before defendant called at the store of Mrs. Oansdale the latter asked if her father knew of any good lawyer and the little girl replied: “When he comes home I will tell him-,” which she did. This contradictory testimony made a question of fact which the police justice has solved in favor of the People. He had the witnesses before him, doubtless knew the defendant and probably his chief witness, and believed the version of the transaction given by Mrs. Oansdale, and we are not disposed to overturn bis conclusion on the facts.

The charge is within thei enlarged definition of larceny given in section 528 of the Penal Oode. That is., that the defendant “with the intent to. deprive or defraud” Mrs. Oansdale of her property, obtained from her possession “by color or aid of fraudulent or false representation or pretense” the stun of twenty-five dollars. This constituted the crime at common law of obtaining property by false pretenses, but it has now lost its distinctive character by being included in that of larceny. People v. Lawrence, 137 N. Y. 517, 522; People v. Dumar, 106 id. 502, 508.

If Mrs. Oansdale’s version is correct, as we now assume, the defendant was not giving expression to Ms opinion or merely forecasting the probable outcome of the investigation, but he assumed to state facts peculiarly within Ms knowledge by reason of Ms familiarity with legial proceedings. He said the criminal proceedings had been started; that there was strong evidence against her, and that her only hope of escape rested on Ms employment. These were affirmations of facts, and operated to excite her apprehensions, and induced her to pay money to him to obviate the disgrace which would result to herself and children from, her arrest..

In this transaction the parties were not on an equal footing. The defendant was a lawyer seeking a client and pretending to' give advice for her benefit and which would shield her from a grave but unf ounded accusation. It was but natural that, with her fears excited, she would give credit to Ms statements and pay whatever he asked. To quote from the opinion of Mr. Justice Barrett, concerning a like charge reported in Therasson v. People, 20 Hun, 61, “Every word the attorney uttered carried with it the weight attached to superior knowledge acting upon the responsibility of a sacred trust. Indeed, we are not prepared to say that, under such circumstances, what might otherwise he treated as a mere naked lie, would not amount to a false pretence.” The evidence is ample to uphold the judgment of conviction, and the judgment of the County Court affirming that of the Special Sessions should he affirmed.

All concurred.

Judgment and conviction affirmed and proceedings remitted to the clerk of Monroe county pursuant to- section 547 of the Code of Criminal Procedure.  