
    Supreme Court—General Term—First Department.
    
      July, 1890.
    PEOPLE v. FITZPATRICK.
    Kidnapping—Promissory False Representation—Penal Code,' Sect. 211, Sued. 1.
    A false representation, essentially promissory in its nature, cannot be made the foundation of a criminal charge.
    The making of a promise that if a person will go to a certain place out side of the State, he will have work at a specified compensation, which promise the promissor knows, at the time of its making, will not be kept, so far as the rate of compensation is concerned, is not kidnapping within the legal signification of that term.
    Appeal by defendant, John Fitzpatrick, from a judgment of the court of General Sessions of the City and County of Flew York, entered 25th of September, 1889, Hon. Rufus B. Cowing presiding, upon the verdict of a jury convicting him of kidnapping.
    The facts fully appear in the opinion of the general term.
    
      John B. Fellows, district attorney ; McKenzie Semple, assistant, for the people, respondents.
    I. The facts proved as above set forth constitute the crime of kidnapping as defined by section 211 of the Penal Code (People v. De Leon, 8 N. Y. Crim. Rep. — ; 109 N. Y. 226). The proofs of guilty intention in this case are even clearer and more satisfactory than the proofs in the De Leon case, it appearing from the return now before the court, that after the defendant had enticed and inveigled complainant aboard the ship by false, deceitful, and alluring representations as to the kind and character of the work, etc., as aforesaid, he made manifest his purpose and intent to cause the complainant to be sent out of this State against his will by forcibly preventing him, the defendant, from even temporarily returning ashore for the purchase of tobacco.
    II. That the jury were justified in finding that the representations were known by defendant to be false, and that they were made with the intent and purpose to mislead and deceive the complainant, is evident from the fact that they were so grossly and monstrously false, that defendant must have known them to be false, and from the fact proved by one of the defendant’s own witnesses, the principal for whom he acted in procuring the laborers, that he was not warranted by his employer and principal in making such representations.
    
      Wm. F. Howe, for defendant, appellant.
   Bartlett, J.

The defendant was indicted for kidnapping David Kennedy. There were two counts in the indictment. The first count need not be considered, as the district attorney virtually abandoned it upon the trial. The second count charges that the defendant, on the 9th day of May, 1889, ■“ did’ feloniously and willfully inveigle and kidnap one David Kennedy, with intent to cause him the same David Kennedy, to be sent out of the State, to wit, to the State of Yucatan, in the Republic of Mexico, and to be there kept and detained against his will.”

According to the testimony of the complainant, he met the defendant on May 9, 1889, at Ward’s pier, in this city, at wiich the steamship City of Washington was lying at the time. The complainant went there in consequence of some statement, not disclosed by the evidence, which had been made to him by a stranger. He asked the defendant “ what sort of a job it was ?” presumably referring to some job which he had heard of from the stranger. Fitzpatrick said “ It was a job in Mexico—$35 in American dollars, and board a month.” He also said it was a good job, and things were cheap there. The work was work on a railroad. The complainant further testified in substance that the defendant said that the company ” at Progreso, in Yucatan, was to pay the $35 a month in American money and provide the board, when Kennedy and the other laborers who went out at the same time should arrive at their destination; and that Fitzpatrick said there was a job at Progreso waiting for them, and that Progreso was a healthy place.

After talking with the defendant, Kennedy signed a paper at his request, on which there were already twenty or thirty names, and then went on board the steamer. There is some testimony to the effect that subsequently, when the complainant was coming down the gangplank and told the defendant that he was coming ashore for tobacco. Fitzpatrick lifted his stick and' spoke to him threateningly, telling him to get back into the ship; but this becomes unimportant, as the district attorney did not insist that Kennedy was sent out of the State by violence, and the learned trial judge so instructed the jury in his charge.

The complainant and his companions went to Progreso on the steamer. It is not necessary to review in detail their unpleasant experiences in Yucatan. After some delay, they were given work in handling freight on a railroad, for which they were paid at the rate of a Mexican dollar a day, without board, instead of at the rate of $35 a month in American money, with board. The price of food appears to have been so high that it was difficult, if not impossible, to make a fair living on such wages. In the opinion of the complainant, the climate was unhealthy; and, after working for a Mexican dollar a day at Merida for about two weeks, and boarding himself, he left the capital of Yucatan and managed to make his way back to Hew York.

The defendant, in testifying in his own behalf, denied having told Kennedy or anybody else that the men would receive $35 a month in American money, or having said anything about their board or in reference to the climate in Yucatan. As to the making of these statements, however, the verdict of the jury is against him,- and the case must be disposed of in this court on the assumption that he made them. I am also of the opinion, after reading all the testimony through very carefully, that it affords ample support for the inference, which must have been drawn by the jury, that the defendant knew the complainant would not find work on a railroad in Yucatan at the promised compensation, and for the further inference that the defendant’s purpose in making the statements which he did make was to induce the complainant to go out of the State.

Assuming all these facts, the question is whether the act of the defendant constitutes the crime of kidnapping under the provisions of the Penal Code.

The defendant was convicted under the first subdivision of section 211, which declares that any person is guilty of kin dapping who willfully “ seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this State, or to be sent out of the State, or to be sold as a slave, or in any way held to service or kept or detained, against his will.” In view of the proof, the verdict must have been based on a finding that Fitzpatrick -inveigled Kennedy for the purpose of causing him, and thereby did cause him, to be sent out of the State against Ms will; and if the evidence will support such a finding, the conviction will have to be sustained.

In the case of The People v. De Leon (109 N. Y. 226 ; 8 N. Y. Crim. Rep.) it was said that an inveiglement, in the ordinary sense of the word, implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force ; and it was held that the defendant had. inveigled the complainant within the meaning of the kidnapping statute, "when he procured her consent to go to Panama upon the pretense that honest employment had been secured for her there, while in fact his secret design was that she should become an inmate of a brothel.utB every deceptive or evil practice does not constitute an inveiglement; and I think a material distinction exists between the case at bar and the case of The People v. De Leon {supra), in respect to the nature of the deception. There the promise of honest employment was not only to be broken, but a distinct affirmative wrong was to be done the complainant by forcing her into a life of prostitution in a foreign land. Here, the. facts are very different. The complainant was promised honest employment, and he got it. The deceptive part of the promise, which was not kept, was the assurance that he should be paid $35 a month in American money and receive his board, instead of which his wages were so meagre that he could only just live on them. I attach little importance to the alleged false representations concerning the climate of Yucatan and the prices there, since it is plain enough that they were not the procuring cause of the complainant’s consent to go thither. He was induced to go by the promise of work at a specified compensation, and we are called upon to determine whether the making of a promise of this kind, by a person who knows it will not be kept, so far as the rate of compensation is concerned, is an inveiglement within the legal signification of that term, so as to subject the person making it to punishment as a kidnapper. I do not think it is.

In the case of Ranney v. People (22 N. Y. 413, 417) it was said that a false representation, essentially promissory in its nature, had never been held to be the foundation of a criminal charge. In effect, the defendant’s statements to Kennedy about work at Progreso were merely promises to give him work when he arrived at that part. Their true character is not changed by reason of their form. Saying to the complainant that there was a job waiting for him in Yucatan was only another way of promising him employment if he would go to that country. The legal effect of making such a promise, with an intent not to fulfill it, so far as relates to the wages to be paid, must evidently be the same if the contemplated employment were in Hew Jersey instead of in Mexico; yet I hardly think it would he held that a. man was guilty of kidnapping who came to this city and induced a laborer to cross the Hudson river on a ferryboat to Hoboken, by a promise to give him work there at a dollar and a half a day, when he really intended to pay him only a dollar a day. Such a" proceeding would be a shabby trick,, but not a crime. As was said by Comstock, Ch. J., in Banney v. People, already cited, the offense of making a false and delusive promise, with no intention of performing it, is not, indictable; and, as has been suggested, the deception in the JDe Leon case consisted not only in the design to withhold honest employment from the complainant, but to compel her to enter upon a life of shame.

In view of the great hardship sometimes inflicted upon those who are induced by false promises to go from this. State to foreign lands, the Legislature might well provide for the punishment of the wrong-doers in such cases through the agency of the criminal law ; but, under the law as it now is, I do not think the facts disclosed in the records before us authorized the conviction of the defendant of the crime of kidnapping.

In my opinion, the 'udgment should be reversed.

Van Brunt, P. J., and Barrett, J., concurr.

Judgment reversed.  