
    SUPREME COURT—APP. DIV.—FIRST DEPT.,
    Jan. 15, 1909.
    THE PEOPLE v. MAURICE FITZ-GERALD.
    (130 App. Div. 124.)
    (1) . Grand Larceny, Second Degree—Retention of Money by Attorney.
    The defendant, an attorney at law, was convicted of the crime of grand larceny in the second degree. There was evidence that having been retained to prosecute an action for personal injuries he had settled the case with the defendant, a municipal corporation, without his client’s knowledge, and having received the amount of the settlement, of which he was entitled to one-half, he retained the whole, and several months thereafter told his client that the case, because of the congested condition of the calendar, had not been tried. The defendant gave evidence that he had refused payment because the client demanded the whole sum, being dissatisfied with the amount of the settlement. On all the evidence, held, that a judgment of conviction should be affirmed.
    (2) . Same.
    As the defendant had deceived his client respecting the receipt of the money and had used the same for his own purposes and was unable to repay it, and several months had elapsed between the receipt of the money and the inquiry concerning the case by the client; it was not necessary to show that the client made a formal demand for payment.
    McLaughlin, J., dissented, with opinion.
    Appeal by the defendant, Maurice Eitz-Gerald, from a judgment of the Court of General Sessions of the Peace in an'd for the county of New York in favor of the plaintiff, rendered on the 2d day of March, 1908, convicting the defendant of the crime of grand larceny in the second degree, and also from an order denying the defendant’s motions for a new trial made upon the minutes and in arrest of judgment.
    
      Clark L. Jordan, for the appellant.
    
      Robert C. Taylor, for the respondent.
   Houghton, J.:

The defendant, was indicted and convicted of the crime of grand larceny in the second degree in appropriating to his own use with criminal intent the sum of $250 which he had collected as attorney for one Teresa Happel, his client.

In the early part of 1906 Mrs. Happel, through the defendant, as her attorney, brought action against the city of Hew; York to recover damages for the negligent killing of her child, negotiations for the settlement of the claim were entered into between defendant and the corporation counsel of the city, which resulted in the entry of a judgment for $500 and the payment of that sum to the defendant as attorney on the 29th day of August, 1907. The defendant had an agreement with his client that he should be entitled to one-half the recovery for his services. Several months after the action had been settled, and after the defendant had received the money, as the" complainant testifies, she inquired of the defendant as to the progress of her case and what had become of it, and defendant replied, in substance, that it was not. strange the case had not come on for trial in view of the congestion of the calendars of the courts, and that he would take it up with the city attorneys and see whether they would settle or go to trial, and that he made several appointments to meet her and explain the situation of affairs, which he failed to keep, and that finally, becoming suspicious, she caused inquiries to be made and learned that the case had already been settled and the money paid to the defendant. Other witnesses in behalf of the People testified that when the defendant was confronted with the complainant’s accusations he admitted that he needed the money at the time he received it and used it for his own purposes, and that he did not, tell the complainant that the case had been settled and the money collected when she made inquiries because he was financially embarrassed and could not pay her. On the other hand, the defendant testified, in which respect he was corroborated by his wife, that he told the complainant when she made inquiries respecting the progress of the action that it had been settled for $500, and that $250 was coming: to her, which he offered to pay, and that she refused to take the $250 and demanded the whole $500, and complained that he had settled for so small a sum and desired he should" pay the money back to the city and continue the prosecution of the action; and further, that he had been at all times financially responsible and willing to pay her the $250 to which she was entitled.

It was clearly for the jury to say whether they believed the-story of the defendant or that of the complainant and the other witnesses produced in behalf of the People to the effect that the defendant concealed the fact of settlement of the cause of' action and the receipt of the money and represented that it had. not been settled, as well as the claimed confession of the defendant that he had used the money for his own purposes and. was so financially embarrassed at the time inquiries were made by the complainant that he could not pay her share to her.

The learned trial court, instructed the jury that if they believed the defendant’s testimony they must render a verdict of not guilty, but on the contrary if they believed the evidence of the witnesses prodiiced by the People and that the defendant had a guilty intent to appropriate the money to his own use at the time he received it, and did in fact so appropriate it, then they could and should find the defendant guilty.

The defendant urges as his principal ground for reversal of' the judgment of conviction that the theory of the trial was wrong in that it was incumbent upon the People to show- a demand on behalf of Mrs. Happel for the $250 belonging to her, and that until such demand no conversion or misappropriation could be committed, because the money was rightfully in the hands of the defendant a.s attorney for the owner. Such a demand was never made, and the trial court held that under the facts proved it was not a necessity because deception had been practiced and receipt of the money concealed and the share belonging to the complainant actually appropriated by the defendant, and that the length of time which had elapsed from its receipt to the defendant’s interview with his client, together with the fact of the actual appropriation by the defendant permitted the jury to find, if it saw fit, a guilty intent on the part of the defendant.

We think the court’s ruling in this regard was correct. The same question was considered by this court in People v. Birnbaum, 114 App. Div. 480, 20 N. Y. Crim. 295. In that case an attorney who was entitled to one-half the recovery settled the case of his client for $2,000 and falsely represented to her that it had been settled for only $1,300. In his opinion in that case Mr. Justice Laugiiliw. said: On the facts here presented a demand therefor by the client upon the attorney and refusal upon his part to pay would have completed the-crime. She was deprived of making a demand by his concealment of the fact that he still retained some of her money and by assuring her that he had fully accounted.”

The court, broadly charged the jury that the complainant was entitled to only $250 of the $500 and that the defendant came lawfully into possession of the complainant’s share and did not need to keep the identical money which he received to pay over to her, but could mingle it. with his own provided he had remaining $250 with which to pay her.

The question of necessity for demand was raised by counsel for the defendant in various forms and by many requests to charge. We do not deem it necessary to discuss them in detail further than to say that in view of the deception proved to have been practiced by the defendant upon his client respecting the receipt of the money, and his confession that he had used! it for his own purposes and was unable to repay it, and the-length of time which elapsed between its receipt by him and! inquiry concerning it by the complainant and continued concealment of the fact of collection, we do not deem failure to prove demand fatal to the conviction of the defendant.

At first blush some of the defendant’s requests to charge with respect to guilty intent might seem to have been improperly refused. In his main charge the court told the jury that they must find that the defendant had used the money for his own purposes. After various requests respecting intent had been made and various responses made by the court, the defendant’s counsel finally asked the court to charge that guilty intent, unless coupled with some overt act, could not constitute the crime of larceny. To this the court responded that he had all along assumed in charging as to intent that the defendant had used the money for his own purposes. In view of the charges made and this explanation of the court the jury could not have understood that the court intended to instruct them that a guilty intent, unaccompanied by any overt act, would make the defendant guilty of the crime charged against him. What the jury did understand was that notwithstanding the defendant may have appropriated the money to his own use, still it must have been with a guilty intent in order to make him guilty of any crime. ,

It is unnecessary to discuss further phases of the case, but only to say that upon a careful examination of the record we are convinced that the defendant was proven guilty of the crime charged against him and given a fair trial, and that there were no errors committed which call for a reversal.

The judgment of conviction should be affirmed.

Pattebson, P. J., Laughlin and Scott, JJ., concurred ; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

The court, in its main charge, instructed the jury that if they believed “ that this defendant, when he collected that money, at any time from the time he collected it up to the time of his indictment, did not intend to deliver the proper share to the complaining witness, then he is guilty of larceny as alleged, and your verdict will he guilty.” At the conclusion of the charge defendant’s counsel requested the court to charge the jury that no niattc-r what the defendant’s intent “ may have been, that he had a right to the possession of the money until the minds of the parties met as to the amount to which each was entitled.” Also: “ That unless there was a deception practiced upon the complaining witness a conviction cannot he had, and the defendant would not he guilty of larceny until a demand was made for tne sum due from him to his client.” And: “ That unless the jury find, as a matter of fact, that there was deception practiced, they cannot convict. The defendant would not he guilty, no matter what his intentions were, unless a demand were made upon him.” These requests were denied, and exception taken in each instance, and in declining the last one quoted the court further emphasized what he had said in the main charge as to intent, saying: “If the jury believe that between August, 1901, and January 18th, there was an intent on the part of the defendant to misappropriate that $250 to his own use and not turn it over to his client—if they find that that intent existed, they may convict.. And it was not necessary, to constitute that crime, that he should he guilty of any deceit to his client that he had or had not collected it.” Exception was duly taken to this instruction.

I am of the opinion that the court erred in giving the instructions which it. did, and also in refusing to charge as requested. When the whole charge is considered, with the refusals to charge, it will be seen that the court, in effect, instructed the jury that in order to convict it was not necessary for them to find that a demand was made by the complaining witness for her share-of the money, or that the defendant practiced any deception in withholding the money from her; hut they could convict if they found, between August, 1907, and January eighteenth, there was an intent on the part of the defendant to misappropriate the share of the complaining witness- and. not turn it over to her1; in other words, the court charged the jury that if the defendant had an evil intent in relation to the money in question, he might be convicted, although he did no overt act in connection with its misappropriation.

As to whether the defendant’s neglect or refusal to pay to the complaining witness her share of the money was due to a dispute between them as to the amount which she was entitled to receive—as he says it was—was a close question of fact, and defendant’s claim is corroborated to some extent at least by the-attitude of the complaining witness at- the trial when she declined to- accept $250, though assured it would have no effect whatever upon the trial.

There being such a close question of fact, I think the court erred in instructing the jury as it did as to intent and refusing to charge as requested by defenedant’s counsel, and for that reason the judgment of conviction should be reversed and a new trial ordered.

Judgment affirmed.  