
    The People of the State of New York, Respondent, v. John Moran, Appellant.
    
      Indictment for Iarceny — sufficiency of, under Penal Code, section 528 — proof of the crime — objections to the indictment not considered on appeal in the first instance.
    
    An indictment which expressly charges that the defendant, an employee of the complainant’s firm, and one Thomas E. Flannery did ‘ ‘ feloniously receive and obtain the said proper moneys, goods, chattels and personal property from the possession of the said .copartners by color, and by aid of the said false and fraudulent pretenses and representations aforesaid, with intent to deprive the said copartners of the same and of the use and benefit thereof, and to appropriate the same to their own use,” sufficiently charges the defendant with the commission of the crime of larceny within section 528 of the Penal Code.
    What proof that an employee of a firm, by false representations made to it that a fictitious person was responsible, induced the firm to deliver goods which were, as a consequence, lost by it, establishes that the property of the firm was obtained “by color or aid of fraudulent or false representation or pretense,” considered.
    A defendant who has proceeded to trial in a criminal action without objecting to the sufficiency of the indictment should not, where the evidence is sufficient to sustain a verdict against, him, be permitted to object on appeal in the first-instance to the sufficiency of the indictment.
    Appeal by the defendant, John Moran, from a judgment of the Court of General Sessions of the Peace for the city and county of New York in favor of the plaintiff, entered in said court on the 7th day of June, 1896, convicting him of the crime of larceny in the first degree.
    
      Rollin M. Morgan, for the appellant.
    
      Alfred Lauterbach, for the respondent.
   Ingraham, J.:

The defendant was indicted for larceny in the first degree under sections 528 and 530 of the Penal Code. The evidence produced by the People tended to show that the defendant, who was in the employ of the firm of E. Eising & Co., in combination with one Thomas E. Flannery, who was jointly indicted with the defendant,, obtained from such firm of E. Eising & Co. certain' goods of the value of $718, under the device of a sale thereof to one Patrick J. Flannery, and that the defendant represented to the firm-of E. Eising & Co, that- said Patrick J. Flannery was a responsible person. . It subsequently appeared that there was no such person as Patrick J. Flannery; that the goods were delivered at a saloon owned and controlled by Thomas E. Flannery ; that immediately after the delivery of the goods they were removed from the saloon and disappeared,, and thus the property of the complainants of the value of $718 was obtained “ by color or aid of fraudulent or false representation or pretense.” The evidence that this defendant joined in this fraud and procured the complainants to ship the goods as sold to this fictitious person justified the conclusion of the jury that he was guilty of the crime charged: The defendant was called as a witness in his-own defense and gave his account of the transaction, which differed materially from the evidence given by the witness for the prosecution ; but the question upon the evidence was one of fact for - the jury, and it was submitted to them in a charge to which no objection was made or exception taken, and.which fairly submitted to the jury the question which they were to determine, and their verdict, is conclusive.

The defendant objects to the indictment as not sufficient within section 528 of the Penal Code. This section provides that A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate tire same to the use of the taker, or of any other person, either: 1. Takes from the possession of the true owner, or of any other person ; or obtains from such possession by color or aid of fraudulent or false representation or pretense;* * * or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property * * * or article of value of any kind * * * steals such property, and is guilty of larceny.” The indictment here distinctly charged that this defendant with Thomas E. Flannery induced, by means of false and fraudulent representations, the complainants to deliver the property therein described to the defendant and Thomas E. Flannery. It was not necessary to constitute the crime of larceny to establish that this defendant received the property; but it was sufficient if the complainant was defrauded of the property by false and fraudulent representations made by the defendant with intent to deprive or defraud the true owner thereof and to appropriate the same to the use of the taker or of any other person. What was necessary to be alleged in the indictment was that the defendant, with intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, obtained from the owner the possession of his property by “ color or aid of fraudulent or false representation or pretense.” This indictment expressly charges that the defendant and the said Thomas E. Flannery did “ feloniously receive and obtain the said proper moneys, goods, chattels and personal property from the possession of the said-copartners by color, and by aid of the said false and fraudulent pretenses and representations aforesaid, with intent to deprive the said copartners of the same and of the use and benefit thereof, and to appropriate the same to their own use.” We think that the indictment was sufficient to charge the defendant with the commission of a crime within section 528 of the Penal Code., There was no objection, however, made upon the trial to the indictment or that it was insufficient to charge a crime within the section specified. The defendant proceeded to trial upon this indictment without objection, and, as there was evidence sufficient to sustain a finding of the jury that the crime charged was committed, the defendant should not 'be allowed upon appeal for the first time to raise a question as to the sufficiency of the indictment.

We think the evidence justified the jury in finding the defendant guilty and that no error was committed upon the trial which requires a reversal of the judgment.

The judgment appealed from is affirmed.

Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.

Judgment affirmed.  