
    Supreme Court—Appellate Division, First Department.
    May, 1902.
    THE PEOPLE v. ALONZO J. WHITEMAN.
    (72 App. Div. 90.)
    1. <3rRAND LARCENY-PENAE CODE), SEC. 529.
    Defendant, who was registered at a hotel under the name of John D. Wilson, paid his bill with a check of one Dola-n, payable to and endorsed with his assumed name, making no express representation, and was paid $64.45 difference in change by the cashier. The check was returned, marked “no account,” and it appeared that no such man as Dolan had an account at the bank on which the check was drawn. The defendant said to the officer who arrested him on a war- , rant “ on a bad check in the Hotel Navarre,” “ Now we can straighten this matter out, I can get money and make good that check. You have no feeling against me, have you.” Held, that evidence of these facts was wholly insufficient to warrant a conviction under section 529 of the Penal Code.
    
      2. Same—Penal Code, Section 528.
    The rule is necessarily quite different with reference to the criminal liability in having a personal check cashed and in having a check payable to one’s order cashed, as in the former case he is presumed to know the condition of his own bank account.
    3. Same.
    Where neither the signatures nor financial standing of the drawer or payee is known, there is no adequate protection afforded, either by the civil or criminal law, to one paying such a check without inquiry and obtaining satisfactory representations.
    Appeal by the defendant, Alonzo J. Whiteman, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, entered on the 3d day of April, 1901, convicting the defendant of the crime of grand larceny in the second degree, and also from an order denying the defendant’s motion for a new trial, and from an order denying his motion in arrest of judgment.
    Amos H. Evans-, for the appellant.
    Howard S. Gans, for the respondent.
   Laughlin, J.

On the 15th day of Hovember, 1900, the defendant was presented with a bill for thirty-five dollars and forty-five cents for board and lodging at the Hotel Havarre, where he had previously registered under the name of John D. Wilson. He stepped up to the- cashier’s window and handed the bill to the cashier, together with a cheek for one hundred dollars, purporting to have been drawn by Arthur Dolan, Jr., on the Gerard Trust Company of Philadelphia, dated that day and payable to- the order of John D. Wilson, and so indorsed. He made no express representation and was asked no question. The cashier delivered to him sixty-four dollars and forty-five cents, the difference between the face of the check and his bill. The check was in the due course of business, forwarded to Philadelphia for collection and returned marked “ Ho account'.” The defendant remained at the hotel a couple or days after giving the check but departed before it was returned dishonored. It was shown that no person by the name of Arthur Dolan, Jr., had had an account, with the Gerard Trust Company within three years. The cashier knew nothing of the defendant except that he had registered at the hotel under the name of John D. Wilson. Upon these facts the defendant was arrested and subsequently indicted.

The indictment contains two counts, one charging grand larceny in the second degree, under section 528 of the Penal Code, in obtaining money by color or aid of fraudulent or false representation or pretense,” with “ intent to deprive or defraud ” the proprietor of the hotel whose money was thus obtained, and the other charging grand larceny in the second degree, under section 529 of the Penal Code, in obtaining the money wilfully and with intent to defraud the owner “ by color or aid ” of the check, knowing “ that the drawer or maker thereof ” was “ not entitled to draw on the drawee for the sum specified therein. . . . althofigh no express representation ” was “ made in reference thereto.”

It was shown that the defendant, on being arrested and informed that the arrest was on a warrant “ on a bad check in the Hotel Havarre,” said to the officer on the way to the station house, “How, we can straighten this matter out; I can get money and make good that check. You have no feeling against me, have you ?” Ho other material evidence was introduced by the People and the defendant did not take the stand.

There can be no doubt, we think, that the evidence is wholly insufficient to warrant a conviction under section 529 of the Penal Code. The evidence does not fairly justify the inference that the defendant wilfully, with intent to defraud, obtained the money on the check with knowledge that Dolan was not entitled to draw against the Philadelphia bank for the amount thereof. The most that can be inferred from this evidence as tending to show a violation of the section lastly referred to is that defendant was known to Dolan by an assumed name, and that the check was made payable to his order under an assumed name in which he indorsed it and obtained the money. This is not necessarily inconsistent with his innocence of the fact that Dolan did not have an account with the Gerard Trust Company which was good for the amount of the cheek.

The question of the sufficiency of the evidence to hold the defendant under section 528 of the Penal Code for obtaining money “ by color or aid of fraudulent or false representation or pretense,” with intent to deprive the true owner thereof, is hot so free from doubt The jury were doubtless justified in finding from all the facts and circumstances that he deceived the cashier with reference to his true name, and that in obtaining the money he falsely represented or pretended that his true name was John D. Wilson. (People ex rel. Phelps v. Oyer & Term. County of N. Y., 83 N. Y. 436, 453; Fowler v. People, 18 How. Pr. 493; Kling v. Irving Nat. Bank, 21 App. Div. 373; People v. Pinckney, 67 Hun, 428.)

If the facts and circumstances were such as to indicate that the check would not have been cashed on his credit if it had been payable to his order by his true name, then probably his conviction would have been justified; but it does not appear that the cashier was led by the fictitious name to believe that he was another individual of financial responsibility. The credit was given to him and he remained liable civilly. The cashier was in no manner misled except as to the fact that he had registered under an assumed name. The false pretense or representation with regard .to his true name is not what deprived the owner of his property. The check was- cashed in the expectation that it was good and would be paid. Payment was not refused because of the fictitious name or indorsement of the payee, but solely because of the want of funds to the credit of the maker. The false pretense or representation to constitute larceny, must have some bearing upon the question as to whether the check will be paid or relate to the responsibility of the drawer or payee. There is nothing to show or indicate that if he had registered in his true, name and the check had been payable in that name, the credit would not have been extended, and as he was unknown it is manifest that the credit was given to the individual and not on the strength of a name which could have had no financial strength in such circumstances.

We think that the evidence is not sufficient to sustain his conviction. The rule is necessarily quite different with reference to the criminal liability in having a personal check cashed, and in having a check payable to one’s order cashed. In the former case, he is presumed to know the condition of his own bank account; but where a person asks to have a check payable to his order cashed, while he guarantees payment, it is evident that he may not know whether the account of the drawer of the check is good, and he will not be liable criminally unless he makes some express material representation or knows that tire check is not good. (People v. Moore, 37 Hun, 84.) Where neither the signature nor financial standing of the drawer or payee is known, there is no adequate protection afforded, either by. the civil or criminal law, to one paying such a check without inquiry and obtaining satisfactory representations.

In the case at bar, the People have failed to introduce evidence which tends to establish the guilt of the defendant beyond a reasonable doubt. The facts and circumstances are extremely suspicious, but they do not necessarily point to the guilt of the defendant and are not inconsistent with his innocence; and the conviction, therefore, cannot stand. (People v. Fitzgerald, 156 N. Y. 253.)

The judgment should be reversed and a new trial granted.

Van Bbunt, P. J., Pattebson, O’Bbien and McLaughlin, JJ., concurred.

Judgment reversed, new trial granted.  