
    The People, Resp’t, v. John O. Jeffery, App’lt.
    
      {Supreme Court, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    1. Evidence—False pretenses.
    Upon the trial of an indictment for false pretenses, similar transactions are competent to show the intention of the defendant.
    2. Witness—Impeachment.
    Where a witness for defendant has testified to the good character of the prisoner, the people can properly ask him if he has heard reports derogatory to his character.
    3. Indictment—False pretenses.
    In cases of indictment under § 566 of the Penal Code, it is unnecessary for the people to allege, or on the trial to prove, the value of the- instrument complainant was induced to sign by the false pretenses of the defendant.
    4. Same.
    An averment in the indictment that the defendants made the false and fraudulent representations therein alleged, is an allegation that each of the defendants made such representations, and is sufficient as to each.
    5. Same.
    The indictment, in this case, was held to charge sufficiently the complainant relied upon the alleged false representations of defendants.
    6. Same.
    So, it was held to charge false representations as to existing facts.
    Appeal from a judgment of conviction for false pretenses.
    The.third count of the indictment under which defendant was convicted is as follows: “The grand jury of the county of St. Lawrence, by this indictment, also accuse said John 0. Jeffery, Clarence Crapser, John Eusaw, of the crime of obtaining the signature of another to a written instrument by means of false pretenses, committed as follows : The said John 0. Jeffery, Clarence Crapser, John Eusaw, at the time and place set out in the first and second counts of this indictment, and being the same acts therein alleged, did feloniously, fraudulently, and designedly, and with intent to cheat and defraud another, procure and obtain the signature of the said John McCann to two several promissory notes in writing,—one for one hundred dollars, and one for two hundred dollars,-—each payable in one year'from date, by means of false and fraudulent representations and pretenses made to said John McCann, to wit: That the said John 0. Jeffery, Clarence Crapser, John Eusaw, represented a certain company, to wit, D. Beers & Co., who were doing business at or near the city of Loclcport, in this state; that said company had a charter from the United States authorizing them to do. business; that they were perfectly good ; that they were engaged in the business of selling seed grain; that said business was legal and lawful; that if the said John McCann would purchase of the said John 0. Jeffery, Clarence Crapser, John Eusaw, twenty bushels of oats, at fifteen dollars per bushel, and would give his notes therefor, that within a year, when the crops to be raised from said twenty bushels should mature, the said company would sell, and aid in the selling, for the said John McCann, forty bushels, at fifteen dollars per bushel; that thereby the said John McCann would make a large sum of money; that they, the said John 0. Jeffery, Clarence Orapser, John Rusaw, had made money by the same means; that John Rusaw had made and had enough therefrom to pay the mortgage upon his farm, and he had paid for his farm, and had a large amount of money left after paying for the same; that only three could have the chance in said town ; that they had selected said John McCann because he was poor and in debt, and they desired to aid him ; that said company was perfectly good and solvent; that their charter had five years to run, and there could be no danger of loss to saido John McCann. That, in truth and reality, all of said representations were false and untrue, and were known to said John 0. Jeffery, Clarence Orapser, John Rusaw, to be false and untrue. That said D. Beers & Co. had no charter from the IT. S. government, were not a solvent company, were not engaged in a legal and lawful business, and the said John Rusaw had not made enough to pay and discharge the mortgage upon said farm, and had not paid for his farm, and had not a large amount of money left after paying for the same. And that each and all the other representations were false and untrue, to the knowledge of said John 0. Jeffery, Clarence Orapser, John Rusaw, as aforesaid.”
    
      D. E. Brong, for app’lt; L. P. Píale, Dist. Atty. (G A. Kellogg, •of counsel), for the People.
   Putnam, J.

It is urged by the learned counsel for the appellant that the demurrer interposed by defendant to the indictment ■should have been sustained, for thereason that the third count thereof, under which defendant was convicted, did not allege that McCann believed or relied upon the alleged representations made by Jeffery, Crapser, and Rusaw, or was thereby induced to sign the notes set out in the pleading. But the indictment did allege that defendants, at the time mentioned, feloniously, fraudulently, and designedly, and with intent to cheat and defraud another, procured and obtained the signature of the said John McCann to the two notes described, by means of the false and fraudulent representations and pretenses therein set out. After stating the representations made, it further alleged that each of said representations was false, to the knowledge of defendants. We cannot answer the above-stated position taken by the appellant in any better way than to quote an extract from the opinion of Miller, J., in Clark v. People, 2 Lans. 329, where a similar question arose. The learned justice used the following language: ‘‘It will be observed that there is no positive and direct averment that the pretenses alleged had any influence upon the mind of the prosecutor, or induced him, in any way, to part with the oxen ; and it would, no doubt, have been more strictly in accordance with the rules of pleading applicable to such cases to have inserted an allegation embodying a charge of the character stated. It is, however, averred that by the false pretenses alleged the prisoner did obtain the property. This could not be true, in fact, unless the prosecutor believed the false pretenses set forth to be true, and they had an influence upon his mind, and induced him to part with the property. How could the prisoner obtain the oxen in the manner alleged, unless it was done by means of the false pretenses operating upon his mind and influencing his judgment? The allegation that the prisoner made the representation for the purpose named, in connection with the subsequent averment that he did thus obtain the oxen, is equivalent to a statement that he believed the pretenses to be true, and was induced thereby to part with the property. First is the inducement, and then follows the act of obtaining the oxen,—the latter as a natural and inevitable consequence of the former. The fair and legitimate construction of the last allegation will warrant the inference that, inasmuch as the prosecutor was induced to part with the oxen, that he believed the statements made, and thereby the oxen were unlawfully obtained.”

We concur with the view of Justice Miller, above quoted, and are hence unable to hold that the position of appellant is well taken.

The defendant also objects to the indictment because it alleges a falsé promise, and couples it with alleged false pretenses which arc of no importance without the promise ; citing Ranney v. People, 22 N. Y. 417. An examination of the authority cited shows that it is not parallel to the case under consideration. The false pretense in this case was founded on false representations as to existing facts, by which McCann was induced to deliver to defendant his two promissory notes. In Ranney v. People, supra, the false pretense alleged was the promise of the defendant to employ the complainant at a future time, and pay him, when he did not in fact intend to employ him. It was held that the false representa- ’ tian complained of was promissory in its nature, and hence that a criminal charge could not be sustained. In this case, defendant obtained the notes from complainant by agreeing that a certain corporation or firm should thereafter pay him certaim sums for oats, and that said corporation or firm was solvent. The false representation was as to the solvency of the firm,—as to an existing fact at the time the representations were made. The false pretense counted on was not the false promise, but the statement as to the solvency of the corporation or firm. This case is not different from the ordinary one of false pretense, where one buys goods on credit, falsely representing himself as solvent. In such a case there is a promise to pay for the goods, and the false pretense which would be of no importance without the promise.

Counsel for appellant further claims that the court erred in receiving evidence on the trial of similar transactions to that on account of which defendant was indicted. Such evidence, in cases of alleged false pretenses, where it is important to show the intention of defendant, has been deemed proper. Bielschofskey v. People, 3 Hun, 40; affirmed, 60 N. Y. 616; Mayer v. People, 80 N. Y. 364.

Nor do we think that the court erred in allowing the witness Levan to testify that Jeffery had been indicted ; that he saw in the papers that he had. The defendant had made Levan his witness for the purpose of proving good character. On that subject the people could properly cross-examine him, and, as he had testified to the good character of the prisoner, the people could properly ask him if he had heard reports derogatory to his character. Carpenter v. Blake, 10 Hun, 358-360; Leonard v. Allen, 11 Cush. 241-245.

We are of opinion that it is unnecessary for the people, in cases of indictment under § 566 of the Penal Code, to allege, or on the trial prove, the value of the instrument complainant was induced to sign by the false pretenses of the defendant. The instrument, might be one whose value could not be proved. In this case the defendant obtained the notes of McCann, one of which, for $100 is now outstanding, and on which he may be compelled to pay $100 and interest. We think the case stated in the indictment and proved on the trial was within the plain provisions of § 566 of the Penal Code.

It was alleged in the indictment that the “ defendants ” made the false and fraudulent representations therein alleged. This should bé deemed an allegation that each of the defendants made such representations, and sufficient as to each.

The appellant further urges that the people, on the trial, failed to make out a case that authorized the conviction of defendant. The- people were compelled to show the representations, their falsity, that they were known to be false by defendant, and that the complainant relied upon them. The alleged representations were: That D. Beers & Co., who had an office at Wilson, N. Y., had a charter from the United States government, that would last for several years. There was no danger of McCann’s entering 'into the arrangement proposed by defendants, to give them two-notes, one for $100 and one for $200, for 20 bushels of oats, in consideration of which D. Beers & Co. would executes contract to after-wards sell for or buy of McCann 40 bushels of oats at $15 per bushel, because the company was strong, and had a charter from the government of the United States. Under all the circumstances of the case, the word “ strong,” as used by defendants, should be construed to mean financially strong or able, the word being evidently used to obtain for the company credit with complainant. The representations alleged in the indictment were sufficiently proved on the trial, as against defendant Jeffery. ' It appeared that he took part in the conversation between defendants and complainant at the time the notes were executed; told him there was no danger,—the company was strong; drew the notes, and was one of the principal actors in the transaction. It was sufficiently shown by-the testimony of McCann that he relied on the statements made by the defendants, and was induced thereby to enter into the contract and make the notes. We think the evidence sufficient to go to the jury, as to the falsity of defendants’ representations. It required no evidence to show' that D. Beers & Co. did not have an\' charter from the United States government to carry on the business in which they were engaged, and that the representations made in that regard were false. It was shown by testimony received without objection that there was a firm of D. Beers & Oo. located at Wilson, FT. Y., which started in 1889, and ceased in 1890, before the transaction with McCann. The firm was composed of D. Beers and one Seeley. Prior to the execution of the contract between D. Beers & Co. and McCann, D. Beers had sold out his interest in the company to Seeley for a horse and buggy; so that, at the time of the transaction in question, Seeley alone was carrying on the business in the name of D. Beers & Co. It appeared that Seeley had passed through bankruptcy and was insolvent, and his financial standing was not good; hence, instead of D. Beers & Co. being strong, the evidence indicated that it was composed of one man, Seeley, who was insolvent. As to whether the defendant knew that his statement in regard to the solvency of Seeley, who was doing business in the name of D. Beers & Co., was false, we think, under all the evidence and facts of the case, that the trial judge properly submitted the question to the jury. Jeffery claimed to be an agent of D. Beers & Co., and he lived in the same county with Seeley. Seeley had passed through bankruptcy, was insolvent, and his financial standing was not good at the timé of the transaction with complainant. Under the circumstances, whether the positive and false statement of Jeffery to McCann that D. Beers & Co. was strong, made to induce McCann to execute his notes for $300, was or was not made with knowledge of the falsity of such statement, was a question for the jury.' The jury could have found, on the evidence, that the representation made by the defendant was a reckless assertion as to a fact, as to the truth or falsity of which he did not know. On the whole, we think the case was properly submitted to the jury, and that the evidence sustains the verdict.

Other exceptions were taken, which we have examined, but do not think it necessary to discuss. This court could not properly interfere with the discretion exercised by the trial court as to the sentence imposed upon the defendant.

The judgment should be affirmed.

All concur.  