
    SUPREME COURT—APP. DIVISION—FIRST DEPARTMENT,
    June 19, 1908.
    THE PEOPLE v. GEORGE W. HOPKINS.
    (126 App. Div. 843.)
    (1.) Larceny—Evidence.
    One selling goods under an agreement that he is to have fifty per cent of the profits on goods sold by him, his employer to advance him thirty-five dollars per week to be accounted for on the division of the profits, and that any checks for merchandise sold may be made payable to him, but that he is immediately to indorse them over to his employer, cannot defend a charge of larceny for appropriating to his own use a check received for goods sold, on the theory that he is a partner.
    (3.) Same—New Trial.
    Where, however, the People fail to prove that full payment had been made to defendant according to the contract and defendant’s counsel proceeds on the erroneous theory of a partnership, in the interest of justice the court will exercise the right given it under section 527 of the Code of Criminal Procedure and grant a new trial.
    Clarice and Scott, J. J., dissented, with opinion. «
    Appeal by the defendant, George W. Hopkins, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 5th day of December, 1907, 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 made upon the minutes.
    • Ilenry HardwicJce, for the appellant.
    
      William Travers Jerome, District Attorney [Robert 8. John-stone,, Deputy], for the respondent.
   Houghton, J-:

The defendant was indicted for the crime of grand larceny in the second degree in having while acting as agent for the Sp angenbcrg-McLe an Company appropriated to his own use the proceeds of a check of fifty-six dollars and seventy-five cents belonging to such corporation.

Prior to the receipt of the check defendant had entered into a written agreement with the complainant corporation that ho would act as salesman for it for the period of six months for fifty per cent of the profits of goods sold by himself.

By the agreement it was provided that the corporation should advance to defendant thirty-five dollars per week, which advancement should be accounted for on the division of profits. It was also provided that any checks for merchandise sold by defendant might be made payable to him, but that he was to immediately indorse them over to the corporation.

The agreement continued in force for two months, when it is claimed it was terminated by mutual consent. After such termination it was discovered that the defendant had indorsed and placed to his own account in bank a check of fifty-six dollars and seventy-five cents given to him in payment for goods sold belonging to the corporation, and it was for the appropriation to his own use of the proceeds of this check that the defendant was indicted and convicted.

On the trial the defendant introduced no evidence in his own behalf, and the only testimony on the part of the People was that of the president of the complainant corporation. The defendant rested 'his defense on the proposition of law that he bore a partnership relation to the corporation in the sale of the goods and in the collection of the moneys from purchasers, and hence could not be guilty of larceny in retaining to his own use any of the money collected.

This position was wholly untenable, and the learned trial court was right in holding that no partnership relation existed. If any defense upon the merits existed it should have been developed instead of resting the defendant’s rights and liberty upon any such theory.

While it was proved that the defendant and the corporation mutually terminated their relations at the end of the second month of the defendant’s service, and while it was shown that the amount of sales which the defendant was able to make were small, and that fifty per cent of the profits upon them did not amount to thirty-five dollars per week, the evidence does not clearly establish that the corporation in fact advanced each week the thirty-five dollars which it obligated itself by its contract to do. If it had not made these advancements, and if the defendant openly and avowedly under claim of title to the money, preferred in good faith, retained the proceeds of the check as belonging to himself, he would not be guilty of larceny. So, too, if there was no termination of the contract or determination -or settlement of the share of profits to which defendant was entitled, and he being lawfully in posession openly and in good faith claimed the money as belonging to himself as his share of the profits he would not be guilty of larceny.

It is true that no claim of title to the moneys was proven, and it is possible that none made openly and in good faith can be made, but in view of the lack of proof on the part of the People that full payment had been made according to the terms of the contract, and of the erroneous theory of defendant’s former counsel upon the trial, we are of the opinion that it is our duty in the interest of justice to exercise the right given us by section 527 of the Code of Criminal Procedure, and order a new trial where all the facts can be developed, and it can be determined upon the merits whether or not the defendant is guilty of the -crime charged against him.

The judgment, of conviction should be reversed and a new-trial granted.

Ingbaham and McLaughlin, JJ., concurred; Claeice and Scott, JJ., dissented.

Scott, J. (dissenting) :

The evidence showed beyond dispute that the defendant was the agent of the Spangenberg-McLean Company; that in the course of his employment as such agent he received moneys belonging to his principal which it was his duty to pay over; that he converted or misappropriated it to his own use, and that he concealed the fact of such conversion or misappropriation from his employers. Here were presented all the facts constituting the crime commonly called embezzlement, now denominated larceny. (Penal Code, § 528; People v. Civille, 44 Hun, 497.) From these undisputed facts, in the absence of evidence to the contrary, the jury were justified in drawing the inference of guilty intent, the only other element necessary to establish the crime. The defendant’s contract of employment provided that as compensation for his services he should receive fifty per cent of the amount realized upon orders for merchandise obtained by him, over and above the cost of filling the orders, and that- he should be paid and be entitled to draw thirty-five dollars per week on account of his percentage compensation. His defense at the trial was that this agreement constituted a partnership between himself and the company by whom he was employed, and, therefore, what he took was partnership money, the taking of which did not constitute larceny. As Mr. Justice Houghton observes, this defense was wholly untenable. It is, however, proposed to reverse the conviction because the defendant may have been guiltless of any criminal intent. This theory finds no support in the evidence, and has no better or firmer basis to rest upon than a suggestion by counsel. It is said that perhaps his employers had not paid him all that he was entitled to receive under his contract, and, therefore, he may perhaps have taken and kept his employers’ money, believing that that amount was fairly due him. Of this the evidence gives no hint. As I read the testimony, the proof was that the defendant had been paid, during the term of his employment, the full amount due him upon his drawing account, and that the amount thus paid exceeded the fifty per cent of the profits realized upon the sales effected by him. Such is the fair construction of the comjfiainant’s testimony, and there was no evidence to the contrary. But even if there was something due him upon his contract, he had no right to appropriate his employers’ money, and his act in doing so was wrongful. The fact that he concealed the misappropriation from his employers is persuasive proof that he did not take it under any claim of right. And, finally, if he took and kept the money under the claim and belief that he was entitled to do so, the burden rested upon him to prove the fact. The People having proved the essential facts constituting the crime of larceny, were entitled to rely upon the inference of guilty intent, and it was for the defense to prove, if it could, the absence of that intent. If full payment had not been made under the contract, that fact would not have justified the embezzlement, and it was, therefore, not necessary for the prosecution to prove that full payment had been made, although, as already said, I think that this fact was proven. The defendant, apparently, had a fair trial and selected his own line of defense. Having failed .in that, I can see no ground in the record for affording him an opportunity to devise another. In my opinion the judgment should he affirmed.

Clabke, J., concurred.

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