
    The People of the State of New York, Respondent, v. Gennaro Ghiggeri, Appellant.
    First Department,
    June 3, 1910.
    Crime — larceny — procuring check to be cashed' on false pretenses — proof necessary to bring case within sections 1290 and 1293 of the Penal Law — intent — knowledge of drawer’s lack of funds — evidence — forgery of indorsement — hearsay.
    In order to convict a defendant of larceny under subdivision 1 of section 1290 of the Penal Law in obtaining money on a check by false and fraudulent pretenses as respects its validity, it must be shown that the defendant obtained the money from the person- whom he induced to cash the check with an intent to deprive him thereof or to appropriate the same to his own use, or to that of another, and that he obtained it “by color or aid of false or fraudulent representation or pretense,” or by the aid of the check, and that the check was a “ false token or writing.”
    In order to bring the defendant within the provisions of section 1293 of the Penal Law, making it theft to obtain money by a fraudulent draft, it is necessary to show that he “willfully with intent to defraud by color or aid” of the check obtained money from the person whom he induced to cash it knowing “ that the drawer or maker ” of the check was “ not entitled to draw on the drawee for the sum specified therein.”
    The mere presentment of a check drawn by another does not constitute a representation that the drawer has funds to his credit in the bank on which it is drawn.
    Evidence that the person who cashed the check received it from the bank with a writing attached stating that it was returned because the indorsement was a forgery is not competent to show forgery.
    Moreover, where the only indorsement on the check was that of the payee and the. defendant did not indorse, proof that the payee’s name was forged is not evidence of. a guilty knowledge on the part of the defendant.
    Appeal by the defendant, Gennaro Ghiggeri, from a judgment of conviction rendered against him in the Court of Special Sessions of the First Division of the city of New York on the 10th day of November, 1909, on an information charging him with'petit larceny in having procured a check to be cashed on false pretenses.
    
      Morris Jablow [Louis B. Williams with him on the brief], for the appellant.
    
      Robert 8. Johnstone, for the respondent.
   Laughlin, J.:

The judgment recites.that the defendant was convicted of a violation of the provisions of section 1298 of the Penal Law. That section merely provides that every larceny other than grand larceny in the first and second degrees is petit larceny. The acts with which the defendant is charged, set forth in the three counts of the information, might constitute a violation of the provisions of section 1290, subdivision 1, of the Penal Law, which coiTespond with the provisions of section 528, subdivision 1, of the Penal Code, or of section 1293 of the Penal Law, which correspond with the provisions of section 529 of the Penal Code. The substance of the charge is that the defendant obtained from one Bruno the sum of eighteen •dollars and seventy-three cents by false and fraudulent pretenses with respect to the validity of a check for that amount, which purported to have been drawn by one Benedict W aimer on the American Exchange National Bank to the order of Sperra Bros., and which- purported to have been indorsed by the payees.

In Order to constitute a violation of the provisions of section 1290, subdivision 1, of tile Penal Law, it was necessary to show that the defendant Obtained tlié lhoney from Bruno with intent to deprive him thereof, or to appropriate the same to his own use or to that of another, and that he obtained it “ by color or aid of fraudulent or false representation or pretense,” or by the aid of the check, and that the check was a “ false token or writing; ” and in order to constitute a violation of section 1293..of the Penal Law it was incumbent upon the People to show that the defendant “ wilfully, with intent to defraud, by color or aid ” of the check, obtained the money from Bruno knowing “ that the drawer or maker” of the check was “not entitled to draw on the drawee for the sum specified therein.” It is manifest, therefore, that it was necessary for the People to show either a false representation and criminal intent or knowledge on the part of the defendant that the check was invalid, or that the drawer or maker had not funds on deposit with the drawee sufficient to meet the same. This court held in People v. Whiteman (72 App. Div. 90) that the mere presentation of the check of another by the defendant id payment of his hotel bill did not constitute a representation that the drawer of the check had funds to his credit with the bank on wliicli it was drawn, and did not constitute a violation of the provisions of section 528 or section 529 of the Penal Code, which have been respectively re-enacted without material change in section 1290 aud section 1293 of the Penal Law. In the case at bar the conviction has evidently been had upon the theory that the indorsement of Sperra Bros, on the-check was a forgery, but even this was not shown by the evidence. On the back of the cheek as introduced in evidence appears the following: Sperra Bros. George R. Bruno Pay 19tli Ward Bank or order 12th Ward Bank. Received payment through ReW York Clearing House Endorsement guaranteed 19th Ward Bank.” It thus appears that the check was not indorsed by the defendant. Bruno testified that he put the check in his bank and that it came back to him with a white piece of paper attached showing that it was returned by the American Exchange Rational Bank for the reason assigned, which was “ Endorsement a forgery.” This was not competent proof that any indorsement was a forgery, nor does it indicate which .indorsement is claimed to have been a forgery. Bruno did not testify that he indorsed it and for aught that appears the claim with respect to the forgery may have had reference to the indorsement óf his name on the check. But if it could be assumed that it had reference to the first indorsement and that the same was a forgery, still there is no evidence of guilty knowledge on tile part of the defendant. It appears by the testimony of the cashier of the American Exchange Rational Bank that the drawer of the check had funds to his credit in the bank and the check was paid when presented and charged to his account, but that the drawer subsequently returned the check to the bank and the bank collected the amount paid thereon through the bank from which it received it.

The defendant at the time in question was in the employ of Bruno. Bruno testified that the defendant came to the office one morning and said that he had a check, and his brother-in-law gave it to him; I saw it was indorsed by his brother-in-law Sperra, and I cashed it for him.” This is the only evidence that the defendant made any representation with respect to the check. His only representation, therefore, was that he received it from his brother-in-law. The only evidence with respect to who his brother-in-law was is the testimony of Bruno that he saw that the check was indorsed by the defendant’s brother-in-law. If so, that proves the truth of the representation which defendant made. It may, however, he said that the witness meant not that the indorsement was genuine, but that it contained snch an indorsement. If it may be assumed from this testimony that one of the Sperra Bros, was the' defendant’s brother-in-law, that fact alone is insufficient to - show that he knew that the indorsement was not made by One authorized to indorse the check for Sperra Bros. It may be that by virtue of the copartnership authority, or an arrangement with the bank, all members' of the firm were not authorized to indorse checks, and that the indorsement was regarded as a forgery on this theory. The facts must be more satisfactorily shown in a case involving individual liberty and reputation. It was not disproved that he received the check from his brother-in-law as he' stated, and there is an entire absence of competent evidence that the indorsement on the check when the defendant delivered it to Bruno was a forgery, ¿r that he knew that it was a forgery.

It follows, therefore, that the judgment of conviction should he reversed and a new trial granted.

Ingraham, P. J., McLaughlin, Miller and. Dowling, JJ.,. concurred.

Judgment reversed and new trial ordered. Settle order on notice.  