
    The People of the State of New York, Plaintiff, v. Ohauncey W. Walker, Defendant.
    (Court of General Sessions of the Peace in and. for the City and County of New York
    April, 1903.)
    Crimes — New trial for newly discovered evidence.
    New evidence of the good character of the defendant is not a sufficient ground for granting him a new trial for newly discovered evidence, and where he fails to meet any of the conditions requisite in such a case his application must be denied.
    Defendant claimed to be the agent for an Illinois company engaged in the business of examining insurance policies and reporting to clients on the standing of insurance companies and as to the form and sufficiency of policies issued. He claimed also to have exclusive territorial rights in.Hew York and Hew England as such agent. He sold to the complainant a territorial right for the State of Hew York upon assurances that it was “ virgin territory ” and had not heen sold to other parties but should he the exclusive territory of the complainant. It was maintained upon the trial and found by the jury that these representations were false and fraudulent inasmuch as the territorial right for the State of Hew York had heen sold to other parties prior to the sale to the complainant. A motion for a new trial and to set aside the verdict was denied.
    Reargument and reconsideration was asked for on the ground of newly-discovered evidence consisting chiefly of testimony as to the character of the defendant and the company employing him.
    William Travers Jerome, District Attorney (Robert C. Taylor, Assistant District Attorney, of counsel), for People.
    Charles E. LeBarbier, for defendant.
   McMahon, J.

This is a motion “for a reargument and reconsideration of the motions heretofore made by the defendant for a new trial and in arrest of judgment, and to set aside the verdict of the jury, and for a new trial upon the ground of newly-discovered evidence.”

The defendant was convicted of grand larceny in the second degree for obtaining a certain sum of money from the complaining witness on the false and fraudulent representation that certain territorial rights which he, as agent of a company known as the Policy Holders’ Hational Hnion of Chicago, was authorized to sell and dispose of represented “ virgin territory,” and had not been sold and would not he sold to any other parties, hut that the complainant should have the exclusive privilege of representing and acting for said company in said territory under the conditions of a contract mutually signed. It was contended by the .People and found by the jury that these representations were false and fraudulent, inasmuch as the said territory had been previously disposed of, not once, but several times.

The motion being made after judgment, it is only necessary to consider the last clause of the defendant’s request. Code Crim. Pro., §§ 443, 446.

After the trial application was made to the Supreme Court in another department for a certificate of reasonable doubt, which was denied by Maddox, J. This was done presumably after full consideration of the case and the evidence presented, and after hearing argument of counsel thereon. If, therefore, it were proper on this motion to go into the case itself either to discover error in law or insufficiency of evidence, this decision of Justice Maddox on the question of reasonable doubt would seem to make it unnecessary.

The bulk of' the moving papers consists of affidavits as to the good c aracter, not only of the .defendant, but of the company, whose agent he professed to be. Much of this would have been excluded if offer _d at the trial, because it relates to specific acts of honesty and is no sufficient or competent proof of general reputation.

The two principal affidavits, aside from that of the defendant himself, are made by parties who were witnesses on the trial (by commission), and who were officers of the company for which the defendant claimed to act. It appears from the papers submitted by the People against this motion that these two witnesses, one being a brother of the defendant, are both under indictments for similar offenses in Chicago. While evidence of this fact would not have been admissible upon the trial, it may fairly be considered in the decision of the pending motion.

A large portion of the papers submitted by. the defendant relates to the good character of the company itself. This was never an issue in the case, and if evidence of this kind had been offered at the trial it would have been excluded. In fact, if the company had been engaged in a legitimate business, with valuable rights to sell, and if the defendant had sold these rights fraudulently and by false pretenses, it is no extenuation of his guilt, but rather an aggravation, because it gave him the better basis' for deceiving his victim.

In the case of Kring v. N. Y. C. & H. R. R. R. Co., 45 App. Div. 378, the court says:

“ The rule which should govern in considering a motion of this kind is well settled. It must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence;, that it is material to the issue and goes to the merits of the.case; that it is not merely cumulative, and that its character is such that it would probably have changed the result.”

The defendant in his moving papers does not meet any single-one of these conditions.

Good character is not an excuse for crime, nor a license to commit it; and proof thereof is only useful and competent as enabling, a jury to come to a just conclusion as to whether the defendant committed the act which constitutes the crime, and with guilty intent. There may he cases where such proof would, of itself, create such reasonable doubt as would call for an acquittal.

The motion is denied.

Motion denied.  